Standing Committee B

[Mr. Eric Illsley in the Chair]

Criminal Justice Bill

Clause 27 - Initial duty of disclosure by prosecutor

Question proposed, That the clause stand part of the Bill.

Dominic Grieve: I shall not take up too much time on what I suspect is the only non-contentious bit of part 5. I very much welcome the proposed change to the prosecutor's responsibility. I have experience of the Criminal Procedure and Investigations Act 1996 as a prosecutor, and I would always disclose material that could reasonably be considered capable of undermining a prosecution case. I am delighted that that understanding has now been put on a statutory footing. It is also correct that the clause should add the words
''or of assisting the case for the accused''
 after the phrase ''against the accused''. 
 The provisions highlight the fact—this general comment can properly be made now, because we shall deal with defence disclosure in a moment—that it is wrong to assume that the relationship between the prosecutor and the defendant's counsel and representative in a criminal trial imposes identical duties on them. Indeed, if we start from that basis, we shall be on very shaky ground. Even in our adversarial system, the prosecutor has a duty, over and above that of trying to get the defendant convicted, of ensuring that the trial process furthers justice. I welcome the fact that the clause reiterates that, and we should bear the point in mind when we consider later clauses, in which the Government put some quite strange duties on representatives of the defence. Prosecution and defence are not equivalent in practice, and trying to introduce equivalence will damage the interests of justice, rather than further them.

Simon Hughes: I want to raise an issue that I raised with the Minister before our proceedings, because it relates as much to this clause as to others. How do we manage the collection of witness statements so that we do not discourage people from giving evidence? The Minister may remember that I specifically raised people's reluctance to give evidence with him and Lord Falconer, the Minister for Criminal Justice, Sentencing and Law Reform. We probably all face the same problem in our constituencies. People are understandably reluctant to give evidence when they witness a crime, particularly a more serious one. They know that their statement, to which their name and address will be appended, is likely to be in everyone's hands pretty quickly. By definition, it will be in the prosecution's hands because the police will collect it and pass it to the Crown Prosecution Service. It will
 have to be disclosed to the defence as part of the prosecution evidence. It might also have to be disclosed under the clause if it
''might reasonably be considered capable of undermining''
 the prosecution case. It might be something that the prosecution had not anticipated. I have regularly found that that can be a serious problem. I should like to float publicly an idea that I floated elsewhere, which might affect all clauses concerned with disclosure. It might be worth—[Interruption.] We are all in the same position now.

Mark Simmonds: No we are not.

Simon Hughes: I apologise. We should consider whether, in some cases, statements should be served on the court, and the only person to see them in the first instance should be the person in charge of the case. Then, at the pre-trial hearing and later, witnesses would be confident that, if disclosure were necessary, it would only take place on the basis that their interests would be protected in an appropriate way. It is already possible for a judge to decide that certain court proceedings will not take place in public and cannot be reported. Some happen in camera, because a judge can order that that is necessary—it is very unusual, but it can happen. We shall discuss such an instance when we debate clause 32. Proposed new section 7A(8) of the Criminal Procedure and Investigations Act 1996 reads:
''Material must not be disclosed under this section to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it and orders accordingly'',
 so the issue is raised. 
 There are also cases in which people's identity is not disclosed. The obvious example is sexual offences cases. The great debate concerns whether the identity of the victim should not be disclosed and whether, in some instances, the identity of the person being prosecuted should be protected. We must face the fact that unless we do better in protecting witnesses, we shall have great difficulty in collecting evidence. Therefore, I should like the Minister to address his second round of thoughts to the issue. The first round was expressed at our meeting with the hon. Member for Beaconsfield (Mr. Grieve), the right hon. Member for West Dorset (Mr. Letwin) and my hon. Friend the Member for Somerton and Frome (Mr. Heath), and at a meeting that my hon. Friend and I had with Lord Falconer and the Minister. 
 This bit of the Bill concerns what evidence is needed by the other side in order to ensure that there is a fair trial. The bigger issue is that many trials never get past the starting block. Many of the cases in which the Government complain of a failure to secure convictions are those that do not start with the court process. Within the court process, the conviction rate is high; most people plead guilty or are convicted anyway. The difficulty does not occur once a case has begun, although there are famous cases in which that has happened; the difficulty is in getting the CPS to proceed by agreeing that there is a greater than 50 per cent. chance of success of prosecution, and that it is in the public interest to prosecute. 
 My last general point, which is directly applicable to the clause, is to consider the most famous recent cases that have collapsed. The Damilola Taylor case collapsed because of the wobbly nature of some of the prosecution evidence. There was a second issue to do with inducements and what is proper, and I shall come to that later. The second, the royal butler case, collapsed because part way through the proceedings new evidence or a new argument entered into the case and the prosecution case was thought to be weakened. It is important that we have a process that collects the evidence as thoroughly as it can and is able to assess—through the CPS—how to proceed, but does not put people off from the start because they think that as soon as they make a statement they will lose their anonymity and that, by accident or design, the fact that they have contributed to the case will be out in the open. 
 In the Stephen Lawrence case, one of the really unfortunate things that happened, as colleagues will remember, was that even when the inquiry was taking place the names and addresses of those giving evidence confidentially were released due to a mistake in New Scotland Yard. As the Solicitor-General, I and others in south-east London recall, that was a nightmare scenario. It was nobody's fault, but if ever one wanted something to undermine people's confidence in the process, it was that. I am not so much concerned about the interests of the defence, but I am concerned about ensuring that witnesses can feel secure enough to give evidence. I do not think that the clause addresses that issue at all. How does the Minister think that that could be done? 
 I could have tabled plenty of amendments for the Committee, although I thought that it would be better to wait for the Government's response, as they were given notice a couple of months ago. In the light of debates in the Committee, I shall be happy to introduce amendments on Report that will, I hope, command confidence across the House.

Vera Baird: I hope that the hon. Gentleman is not under the misapprehension that addresses are put on witness statements, because in my experience they never are. There can therefore be no danger from that of a person's being harassed or even identified. I have frequently done cases in which there has been a gang element or a flavour of fear, and in which an application has been made for the judge to allow people's names not to be put on witness statements. People can be called A, B, C, D, E, and so on, and can give their evidence from behind a screen if they want that too. In legislation passed in 1999, the Government introduced a tranche of protective measures to support vulnerable, intimidated witnesses, all of which have, I think, come into force in the past few months. Such provisions protect people against precisely the dangers that the hon. Gentleman described. I cannot see any link between those and the duty of disclosure. The issue of taking care of witnesses is quite separate. I do not think that anyone could criticise the Government for not taking substantial care of witnesses.
 May I say how welcome the clause is and—I do not want to sound frivolous—three cheers for the Home Secretary, if it was his idea? I give him many, many congratulations, and hope that I thereby restore his faith in lawyers. I think that we are all practitioners, and that we shall all be very pleased indeed to see the provision come into force. 
 The key to the provision is that, first, there is no longer a two-stage process, whereby a little bit comes out and then the defence put their defence statement in and draw a little bit more out. However, there may still be issues that are obvious on the papers, and which give rise to the need for more information to come out, but about which the prosecution say, ''Well, we're not sure whether it comes into either of these categories, and we've got a duty to be very careful.'' There are therefore pointless applications to courts to order whether X, Y or Z should be given out. It seems that that will now almost all go, particularly because of the other aspect of the provision. 
 Not only does the provision do away with the two-stage process, but it does away with the subjectivity, which was previously express in the legislation. Then the prosecution had to consider whether something undermined the prosecution or supported the defence. Now the test is couched in terms that should have been used in the first place. The words 
''in the prosecutor's opinion might undermine''
 have been replaced by 
''might reasonably be considered capable of undermining''.
 That strengthens the hand of fair prosecutors, who, by and large, want to make proper disclosure, and, equally, adds power to the elbow of defence advocates who may be worried that there is still something beyond. My guess is that the heat will go out of the issue, and that a good deal of money, time, and friction between defence and prosecution will have been saved. Therefore, I say again: three cheers for the Home Secretary.

Hon. Members: Hear, hear.

Hilary Benn: After my hon. and learned Friend's contribution, I think that any comments from me are almost entirely redundant. I shall draw the Home Secretary's attention to the six cheers—I think that there were three at the beginning and three at the end—that she said that we should send. Indeed, as far as the specifics of the change are concerned, I sense that there is a welcome across the Committee for the change that Sir Robin Auld recommended and the Select Committee on Home Affairs endorsed.
 My hon. and learned Friend outlined clearly the safeguards that are already in place, and the ones that have been added in recent legislation. To address the very real point on witness intimidation that the hon. Member for Southwark, North and Bermondsey (Simon Hughes) made, we have taken steps but we must continue to keep under review the protection that we make available to those who would otherwise be 
 afraid to give evidence. It is true to say that we have made progress, but further progress is needed. 
 We must reflect on all our experience. The hon. Gentleman has particular expert and personal knowledge because of, as many Members will know, a case in which he was involved. It takes a great deal of bravery and courage in those circumstances to stand up and be counted. 
 The hon. Member for Beaconsfield raised a broader point, which we shall come to in the substantive debates that are to follow. I reread last night with great interest the exposé of the hon. Gentleman's argument in Sir Robin Auld's report. As the hon. Gentleman will detect from the nature of the clauses, the Government do not accept the central thrust of that argument. This clause and subsequent clauses seek to make sensible provision, rather than undermine the rights of the defendant or the right to silence, which was discussed extensively in the Sir Robin Auld's report.

Dominic Grieve: To alert the Minister to where the discussion is heading, I do not disagree with some of the proposals that place greater burdens on the defence, but I have the most profound disagreement with some because they strike at the root of fairness in the criminal justice system. However, we must consider each in turn.

Hilary Benn: Indeed we will. Clause 27, which I hope that we shall agree should stand part of the Bill, is really an entrée to the debate that we are about to have.
 Question put and agreed to. 
 Clause 27 ordered to stand part of the Bill.

Clause 28 - Defence disclosure

Simon Hughes: I beg to move amendment No. 185, in
clause 28, page 17, line 18, after 'party', insert 'after having heard representations from all parties'.

Eric Illsley: With this it will be convenient to take the following amendments: No. 134, in
clause 28, page 17, line 24, at end add 'but the exchange of such defence statements between the co-accused and its service by each accused on the prosecution shall be simultaneous.'.
 No. 187, in 
clause 28, page 17, leave out lines 31 and 32.
 No. 133, in 
clause 28, page 17, line 32, at end add 'insofar as such matters of fact have been identified in a case summary provided by the prosecution.'.
 No. 188, in 
clause 28, page 17, leave out lines 35 to 37.
 No. 135, in 
clause 28, page 17, line 36, after 'take', insert 'at the time the defence statement is given to the prosecution,'.
 No. 226, in 
clause 28, page 17, line 37, after 'he', insert 'then'.
 No. 189, in 
clause 28, page 18, leave out lines 3 to 6.
 No. 136, in 
clause 28, page 18, line 12, leave out subsection (4).
 No. 190, in 
clause 28, page 18, leave out lines 23 to 25.
 No. 227, in 
clause 28, page 18, line 29, at end add 'but the exchange of such defence statements between the co-accused and its service by each accused on the prosecution must be simultaneous'.

Simon Hughes: The amendments relate to the issues of defence disclosure and bring us to the areas of disagreement that the hon. Member for Beaconsfield mentioned. Those disagreements are based on the principle of what the defence should do to resist the prosecution and, given that we shall have an adversarial system for the foreseeable future—no one suggests that we should change that—what the relative and different duties of the prosecution and defence are.
 A perfectly reasonable argument for an inquisitorial system exists. The systems vary within the United Kingdom, although not as fundamentally as they do across the channel. However, there was no suggestion in the Auld review or elsewhere that we should change fundamentally to that system. That would require a far wider debate, and there has been no movement in that direction. I welcome the move towards a system under which the trial judge takes control of the case at a much earlier stage and manages the process. The Minister and Lord Falconer well know the process of court management and case management. The Home Office and the Lord Chancellor's Department have been exercising themselves, as have the Attorney-General and the Solicitor-General, about ways of ensuring that there are fewer administrative delays. It is one of the great frustrations in court when a case cannot proceed, not because of a major issue but because the procedure has not caught up with the timetable. 
 I made a practical suggestion when the Solicitor-General introduced the new head of the CPS in London at her chambers last year. It was that those who are instructed by the CPS to prosecute should see the papers in enough time to spot before the last minute whether anything is wrong. We must ensure that lawyers—not the in-house lawyers, the out-house ones—who are instructed are not landed with something and then, at the last minute, say that it is not ready or not in a fit state to proceed. Such cases often occur. Everyone is then stood down, and the police officers, the witnesses and everyone else who has had to turn up go back to base. 
 Amendment No. 185 would alter proposed new subsection (5B) of section 5 of the Criminal Procedure and Investigations Act 1996. It would change the proposal from one that allows the court to make an order either of its own motion or on the application of any party, to one that has the further qualification that there would have to have been representations from all parties. It is, self-evidently, to ensure that the defendant has an opportunity to have a say about what the effect of that disclosure by the defence would be. It follows the principle that we cannot have a just system unless people have the chance to make their case. The Minister might say that that is the intention 
 anyway. If it is, then people—not I, but future defendants and those representing them—need a guarantee that that is so. We shall hear whether the Government agree with the principle of the amendment. 
 Amendment No. 187 would remove from proposed new section 6A, which has to do with the contents of the defence statement, the requirement that the defence statement be a written statement indicating the matters of fact on which the defendant takes issue with the prosecution. To consider the issue, we need to think through what happens in order for a case to come to court. The CPS and the police collect evidence. There is then a debate between the two bodies and the CPS manages the collection of evidence. There are often conferences about the case. The police are sent to get more evidence. It is accumulated. The CPS then comes to a view that it is appropriate to proceed and serves the evidence that it has on the defence. There is a tight timetable for disclosure. Although they sign up in principle to wanting to be speedy and tight, practitioners sometimes find the timetable unmanageable in practice. In reality, the CPS falls down as much as the defence do. The White Paper noted that only 55 per cent. of cases were adequately prepared by the prosecution, so it is not a matter of the defence delaying things or being incompetent. 
 Then the defence have to receive instructions on the evidence that the prosecution submit and investigate it—it may be necessary to interview people and to find witnesses who can deal with allegations that have been made and counter things that have been said—and prepare the case. In practice, there is a substantial difficulty with the proposal. It will require the service of matters of fact at a time when the defence cannot know what matters of fact the prosecution are using. If such things are required in the initial statement on pragmatic grounds, there is a danger that many people will argue that the proposal cannot be complied with. 
 There is also an issue of principle. Should the defence be able to withhold alibis and to have parity as regards disclosing expert evidence? Both views are understandable. Are the Government really proposing that the criminal justice system should change from one in which the prosecution must put their case, and in which the defendant has nothing to prove because he is regarded as innocent from the beginning, to one in which the defence must keep countering the prosecution? 
 We moved some way down that road when we changed the rules governing the right to silence. I resisted that change, and I still do. People should not be obliged to say anything, and it should not be inferred from their silence that they are guilty or innocent. There should be no inferences, and it is perfectly proper that people are entitled to say nothing and that the jury will judge them on the basis of whether the prosecution evidence stacks up. If people say things, that will obviously be used in evidence and interpreted accordingly. I was therefore uncomfortable about the change, and the Minister will understand 
 that I and many others are even more uncomfortable about a move that requires defendants, who are, by definition, innocent in theory, and who may also be innocent in practice, to give so much additional information. Those are the issues relating to amendment No. 187. 
 Amendment No. 188 would leave out paragraph (d) of proposed new section 6A(1), which would require the defence to indicate 
''any point of law (including any point as to the admissibility of evidence) which he''—
 the accused— 
''wishes to take, and any authority on which he intends to rely for that purpose.''
 This is a pragmatic issue, rather than one of principle, but I wonder whether it is possible to comply with such a provision. It would trouble me if the system did not allow that to be done reasonably and properly. 
 Amendment No. 189 would leave out lines 3 to 6 on page 18, which refer to 
''any information in the accused's possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.''
 I absolutely accept the need to give alibi evidence and that those with an alibi should disclose it. We are talking about how the defence are obliged to assist the prosecution in putting together their case, and that is a matter of judgment rather than principle. 
 Amendment No. 136 is an attempt by both Opposition parties to remove subsection (4), under which matters will be settled through secondary legislation. The amendment suggests that we deal with them through primary legislation, because they are of that level of importance. 
 Amendment No. 190 would leave out lines 23 to 25 of page 18, which relate to the updated defence statement. 
 The motivation behind all the amendments is partly pragmatic, but it also relates to the fundamental relative rights of both parties. I share the Government's view that trials should not be a game, that the prosecution must put their case clearly, that the defence have an obligation to answer certain questions in advance and that alibi questions and the like must be put in the frame. However, we must be clear about the fact that the law should require the prosecution to prove everything beyond reasonable doubt, and that test has served us well. The practical applications of some of the proposals have not been worked out in a way that commands the confidence of the profession and of many of those whom it serves. 
 Sitting suspended for a Division in the House. 
 On resuming—

Dominic Grieve: Amendments Nos. 185, 134, 187, 133, 188, 135, 226, 189, 136, 190 and 227 to clause 28 are designed to improve the Government's proposals, not to wreck them. I want to make that clear. I am completely comfortable with the principle of disclosure
 of the principal defence facts. After all, it was introduced in legislation under the previous Conservative Government. A criminal trial, even in an adversarial system, should not be a series of ambushes. Indeed, in my time at the Bar attempts at ambushing merely led to adjournments, which simply spin out court proceedings.
 It is plainly desirable, as far is as possible, that the principal facts and matters of a defendant's case should be made available to the prosecution before the trial. It is with that in mind that we tabled amendments to clause 28 and also tabled several amendments jointly with the Liberal Democrats. It may be helpful if I outline to the Minister the key issues in the amendments proposed to the 1996 Act by clause 28. 
 First, and I saw the Minister nodding in reply to the speech of the hon. Member for Southwark, North and Bermondsey, it is clear that all parties must have an opportunity to make representations. I fully accept that the rules of court may provide for that, but my reason for tabling the amendment is to ensure that we at least have it on record that that is what was intended. We wish to avoid later suggestions, which can happen, that the usual principle of hearing all parties before coming to a decision is not being adhered to. 
 The present wording is open to the interpretation that disclosure is confined to the prosecutor and to that particular defendant and to nobody else. Some reassurance from the Minister on that would be helpful. 
 Amendment No. 134 calls for the exchange of a defendant's statement with co-accused to be simultaneous. I will return to this, for there is also provision in this part of the Bill for a subsequent statement. That creates problems. However, it is essential that there is simultaneous exchange of the first statements between defendant and prosecution and that there is a requirement that they should be supplied to co-defendants. 
 It is possible to deal with that by rules of court, but we should at least consider the issue. We must also accept, and it is a point worth bearing in mind, that there may be circumstances when this cannot happen because the defendant is arrested late, for instance, and brought to trial later when two trials have been consolidated. Clearly, once a structure of exchanging evidence by means of statement setting out people's cases has been formalised, the last person to become involved in that process, if he is one of the co-accused, may have an unfair advantage over the others. That is a loophole that could be exploited by lawyers for the benefit of their clients.

Graham Allen: Surely not.

Dominic Grieve: I would very much hope not, but I am sufficiently realistic to know, because of my previous career of prosecuting and defending cases, that such things can happen. As we are concerned with ensuring fairness of proceedings, that is quite an important issue, and one moreover that may not be capable of a simple answer. Although in ideal conditions
 simultaneous exchange would be the right course of action, I accept that there may be times when it is not possible. However, the fact that it is not possible does not get away from the ideal, and that arguably raises questions about the potential for serious unfairness. It is a matter on which I would like to hear a little more from the Minister.
 Amendment No. 187 would delete the requirement that the defendant sets out in his defence statement the matters of fact on which he takes issue with the prosecution. At that point, the hon. Member for Southwark, North and Bermondsey and I part company. There are perfectly good reasons why a defendant, through his representatives, should identify the key areas of fact with which he disagrees with the prosecution. I believe that we should be realistic. A prosecution case may run to hundreds of pages of witness statements, and thousands of documents. Given the amount of time that a defendant will normally have with his representatives, it will be completely impossible for him to go through every statement, especially at an early stage, and dot all the ''i''s and cross all the ''t''s in order to identify every conceivable area of factual dispute that might arise between himself and the prosecution. Such an exercise is unreal and will in fact be unreasonable. 
 We cannot get away from the fact—those of us who have practised in court know that it happens frequently—that witnesses say things in the witness box that suddenly lead to one being tapped on the shoulder and being given a piece of information that may turn out to be very important. Sometimes, conflicts emerge that, from the instructions that one was given by the client, one had no reason to expect. That does not necessarily happen because the client has been lying, but because human nature, with its flaws, works like that. Frankly, that is one of the reasons for the trial process. The trial is about people giving oral testimony and evidence, which can be challenged. People can hear what has been said and one hopes that the true pattern of what happened emerges—as do the areas of conflict. Sometimes, one might expect a major area of conflict in a trial, but asking just one extra question of the witness about what he said in his statement can lead to there being no conflict. 
 My concern is that the wording is much too prescriptive. It will lead to enormous problems for legal representatives and defendants. We must face the fact that many defendants are semi-literate—some are illiterate—and have to be taken through statements with care. Many cannot easily read the statements. We are demanding too much. The solution that I suggest in amendment No. 133, which I prefer to amendment No. 187, is for a requirement to challenge the factual assertions in a prosecution case summary. Nowadays, my prosecuting work is almost exclusively confined to health and safety at work. I do one or two other things, but that is my principle area of practice, and I have never prosecuted a health and safety case in which a prosecution case summary was not provided to the defence. Indeed, in my experience, a well-worded and reasonable case summary, setting out the 
 prosecution case, can be a powerful instrument in securing a guilty plea. 
 In so far as a prosecutor produces such a case summary, there should be little difficulty in a defendant identifying the salient points of fact in it and saying whether he agrees with them. That gets us away from all the anxiety associated with a poor old defendant having to decide what he will say about some wholly peripheral assertion of fact by a witness, to which he might not know the answer, on which his memory might not be very good, and which might not be central to the case. Let the prosecutor decide what is important and identify it, and let the defendant respond. That seems to be a much better approach than the one contemplated in new section 6A. 
 The Liberal Democrat amendment No. 188 would omit the requirement to provide points of law. There again, I disagree with the hon. Member for Southwark, North and Bermondsey, because that is too sweeping. There is no earthly reason why points of law known to the defence should not be communicated to the prosecution at the first opportunity. I do not have any difficulty with that. One must be realistic about the way in which the trial process works. Most barristers hope that they are competent, but although I have gone into a trial to represent a defendant knowing very well what point of law I wish to raise, all too often the point of law suddenly emerges from what someone has said, from what has happened or from the evidence. In those circumstances, it is vital that the defendant and his representatives should not be prevented by these provisions from advancing a full argument. 
 Clearly, that places a burden on defence counsel, but it is not a difficult one. Defending barristers already have duties to the court. A judge would quickly see through a defendant who tried to exploit that loophole and would ask counsel, ''When did you first think about this?''—and we have a duty not to lie to the court. Although there is a duty on counsel or on the solicitor to communicate points of law that he intends to use as soon as they have crystallised in his mind, our amendments Nos. 135 and 226 would simply provide the reassurance of expressly setting out that counsel can argue points of law, as they emerge during the trial, without fear that someone will wave these rules in his face and allege that he is acting improperly.

Simon Hughes: The hon. Gentleman understands, I hope, that our objection relates as much to the practical as to the principle. One cannot anticipate which facts and legal arguments will appear important. The defence would always be hampered if any change to their original list were interpreted as undermining their credibility.

Dominic Grieve: I agree with the hon. Gentleman, but I have done trials in which the judge has spoken to counsel on the first day and said, ''I have read the papers and I anticipate that points of law will arise. Could you identify those points of law now and supply me with the authorities?'' So it is sometimes plainly obvious what will happen. Indeed, a trial may revolve
 around a point of law that is known to both prosecution and defence at the outset. The defence are not handicapped by having to declare their hand at an early stage when they know what that hand is going to be. My concern is that one often does not know what one's hand is going to be—

Paul Stinchcombe: I agree with large parts of the hon. Gentleman's argument. In every case in which I have been involved, matters have arisen that I had not anticipated, whether of law or of fact. However, is the correction not already built in to the Bill, through clause 34? New section 11(5) seems to admit of changes to the defence subject to the court making
''such comment as appears appropriate''.

Dominic Grieve: I shall come to that in a moment. However, the very phrase that the hon. Gentleman has read out raises anxieties in my mind about how the court will make such a comment. Ultimately, the judges will draw up the rules and they will interpret them, and I have little doubt that they will strive to be fair. However, we are setting out a statutory framework. In doing so, it would be desirable to point out, even at this stage, that we fully understand the limitations on the ability of representatives to carry out the exercise that we are asking them to carry out in clause 28. Not to do so raises a presumption that if it is not complied with, barristers will worry late at night that that will have an adverse consequence on their clients.
 I am all for kicking members of the legal profession from time to time to ensure that they operate expeditiously and do their homework properly. However, trial processes, as the Minister knows, are stressful for all concerned, defendants, those representing them, prosecutors or—

Graham Allen: Victims.

Dominic Grieve: Indeed, and for the witnesses, but at the moment we are concentrating on the position of defendants. I never lose sight of the fact that, irrespective of somebody's guilt or innocence—if he is guilty he ought to have pleaded guilty at the earliest opportunity—the trial process is stressful for those who go through it as defendants. One is entitled to say of those who do so, and are acquitted, that they have been through a life experience that I would not wish to have to go through. One must make allowance for that, otherwise one moves towards the rather mechanistic approach that can produce unfairness. That is what the amendments that I have tabled are designed to prevent. If the Minister were minded to accept them, I do not see how the thrust of part 5 and clause 38 would be diminished. If he thinks that it would be, we can debate that.
 Amendment No. 227 deals with the simultaneous nature of exchange in circumstances in which there has been an additional provision. I return to what I said originally: I accept that that creates problems, because additional statements may be served for different reasons by different defendants at different times. However, it brings us back to the point about the fairness of the mutual exchange of statements. 
 I find the clause perfectly well intentioned, and inasmuch as it beefs up the 1996 Act and provides for a sensible form of exchange of information, I am in favour of it. However, some of the detail should give the Committee cause for concern.

Ian Lucas: I should like to join my hon. and learned Friend the Member for Redcar (Vera Baird) in welcoming the thrust of clause 27. I speak as someone who formerly practised as a solicitor. I recall dealing with disclosure in substantial criminal cases, and what a difficult issue it was.
 The structure proposed in the clause is entirely proper and reasonable. I speak as someone who formerly practised as a defence solicitor. I must therefore part company with the hon. Member for Southwark, North and Bermondsey, in respect of the approach of the Liberal Democrats' amendments. That is because he said at the outset of his remarks that it is no duty of the defendant to assist the prosecution in a case. I have read the clause very carefully indeed. It is my strong view that nowhere in the clause is there any obligation on the defendant to assist the prosecution. If there is any obligation on the defendant, it is to assist the interests of justice. As currently drafted, the clause does that. 
 I agree with much that the hon. Member for Beaconsfield has said. I think that some of his amendments are useful, and I, too, will welcome the Minister's response to those, which I shall specify in due course. In considering the procedure outlined in the clause, I think that the way in which matters are presently dealt with in civil proceedings is helpful. Civil proceedings do not always provide a good guide to the conduct of criminal proceedings, but they are helpful in the present context. In civil proceedings, a claimant presents the particulars of his claim. In regard to criminal proceedings, I am sympathetic towards amendment No. 133, which says that it should be appropriate for a prosecutor or the Crown Prosecution Service to provide a summary of a prosecution case, outlining the main points in the case. It is entirely reasonable to expect the defendant to respond thereto. 
 A response by a defendant in that context no more assists the prosecution in a criminal claim than the defence in a civil claim assists a claimant who is proceeding against them. The defence identify the issues in the case, highlight bones of contention, and take positive steps in the interests of justice, by limiting the time and expense that both sides use up in going down dark alleys that do not lead anywhere. That ultimately holds for both parties and the court. 
 I believe that the entire process of disclosure in civil and criminal proceedings is helpful. The defence do not in any sense assist the prosecution in their case. The defence assist, if anything, the pursuit of the interests of justice. 
 The issue that I find compelling in the proposals of the hon. Member for Beaconsfield is that of the presentation of the prosecution's summary of the case, before the defence present their case. I think that that would be helpful to any defence practitioner in focusing in on the issues in the case. I agree with 
 those who have practised in the courts who have already spoken, that in almost all cases that come to court, issues that no one had thought were of any importance become key to the conclusion of the proceedings. However, it is helpful for both sides to try to focus on those issues as early as possible. 
 I was surprised by a number of the briefings that I received. One was from the Law Society, of which I am an individual member. My hon. Friend the Member for Bassetlaw (John Mann) is not in his place, but I confess also that I am a non-practising consultant in a firm of solicitors. It is not sensible for the Law Society to suggest that disclosure of the sort outlined in this part of the Bill is in any sense prejudicial to defendants' interests. It will hone the issues between the parties and speed up cases in the interests of justice; and—who knows?—disclosure by the defence may, if appropriate, lead to cases being discontinued. It is far better for defendants that cases should be resolved as early as possible, without the stress and imposition that a contested criminal trial can lead to. 
 I will be interested to hear what the Minister has to say in response to the debate. In general, the clause is to be welcomed. Perhaps it can be refined and improved, but I have no doubt that the thrust of the disclosure proposals will lead to a great improvement in the operation of the criminal courts.

Vera Baird: Briefly, I wanted to join the hon. Member for Southwark, North and Bermondsey, who is from the other side of the legal profession, in welcoming the clause generally. However, I suggest that the amendments proposed by the hon. Gentleman are not necessary. He would expunge paragraph (b) of proposed new section 6A(1), which would require the defendant to indicate the matters of fact on which he takes issue with the prosecution. One has had to do that in defence statements for a long time, so it does not impose a fresh burden. He seeks also to expunge the requirement in paragraph (d) to indicate any point of law that he wishes to take.
 In almost every case that is likely to last more than day or so, there is now a preliminary hearing, called a plea and directions hearing, in which the prosecution and defence have to fill out a pro forma setting out a plan of how the case will run. It asks a number of questions of the Crown—whether they have served all their evidence, whether there is additional evidence, whether they will rely on expert witnesses and so on. It also puts a certain number of questions to the defence, including the ones set out in paragraph (d), under which the defence are required to indicate any point of law, including any point of admissibility, that they are going to use. It is requested that they supply authorities, but I confess that that is not always done. [Interruption.] I see the hon. Member for Beaconsfield smiling; it is quite rare for the authorities to be supplied, but that is nothing to do with defendants. The habit should no doubt be inculcated that the authorities are supplied as early as possible. 
 There is no real change in either of those proposals to the way in which trials are run. The real change is to be found in paragraph (c), which appears to require a good deal more detail than paragraph (b); it wants 
 information not only about what matters the defendant takes issue with, but why he takes issue. That obviously requires some evidential support. I cannot think of a better proposal than the one already canvassed which is that, in most major cases, the prosecution set out as a matter of course all the evidence that they will rely on—in an appropriate but not a swamping level of detail. If it were to be made a rule of court that it had to be done in every case, the prosecution statement could be matched by the defence response required under paragraph (c), and the degree of detail in the summary could properly be matched by the degree of detail in the defence response. That would put it at a level that was fairly general, but detailed enough to allow everyone in the case to know what else they had to do to finalise the preparation. Frankly, none of the clauses seems to me to impose a new burden on the defence or to be anything other than highly desirable in speeding up court proceedings and in making them more effective. 
 One concern that I have—I seek the Minister's assistance with it—is under clause 34, which my hon. Friend the Member for Wellingborough (Mr. Stinchcombe) has already referred to, and it is that subsection (5) of the new section 11 proposes that the court may comment on any defect in defence statements. It also allows, even more penally, the court or jury to draw such inferences as appear proper from any defect in the defence statement. 
 I am a little bit worried, and I seek reassurance about how drawing such adverse inferences will tally with the new section 6A(1)(d) proposed in clause 28, which is about points of law. It is basically the lawyers' responsibility to earmark the points of law that are to be taken. It is difficult to see how it could be fair to hold it against the defendant if his lawyer has missed one. Of course, a defendant might not have given his lawyer information, with the result that the lawyer did not know that there was a point of law. Trying to allocate blame in such a case would lead us into really difficult territory in which legal professional privilege would have to be breached. The court would have to ask me whether my client had given me the information. I am sworn to secrecy about my instructions, and such an inquiry would be inappropriate. 
 By and large, paragraphs (a), (b) and (c) of the proposed new section 6A will require the defendant to disclose most of the information on which he relies, and there can be adverse comment if he fails in any of those duties. Therefore there is no need to give a court or a jury an opportunity to make comment or to draw inferences if there has been a failure to point out the points of law that will be used later. It will—almost by definition, because of the duties imposed by paragraphs (a), (b) and (c) and the prospect of an adverse comment if they are not adhered to—be the lawyer, not the defendant, who has made the mistake. 
 I have a final comment on the proposal by the hon. Member for Beaconsfield that lawyers should be compelled to exchange defence statements 
 simultaneously. No self-respecting defence solicitor would give away their defence statement until they had reached an understanding that it would be done simultaneously. However, if that practice was made a requirement of the law it could sometimes prove unnecessarily rigid. For instance, one defendant could suddenly take ill and be unable to give instructions and the trial of the other person would have to be stopped because there had not been a simultaneous exchange of statements. That would be the antithesis of what we are trying to do, which is to speed up court proceedings. That is not a good amendment. 
 In general, however, despite my caveat on paragraph (d), which I hope that the Minister will help me with, these provisions are very helpful; they do not damage the defence. They will probably require lawyers to prepare their cases much earlier, and there is nothing wrong with that.

Hilary Benn: This has been an extremely helpful debate, and I am grateful for the amendments, which have teased out some of the issues. I will do my best to answer all the Committee's questions. I agree wholeheartedly with my hon. Friend the Member for Wrexham (Ian Lucas) and with my hon. and learned Friend the Member for Redcar. I thank the hon. Member for Southwark, North and Bermondsey for the point that he made on the phrase ''to assist the prosecution'' because hon. Members are absolutely right to point out that that is the wrong approach.
 The point of clause 28 is to assist justice and the trial process, to clarify the issues and to help the judge to manage proceedings. 
 First, I must make it clear that nothing—nothing—in the clause changes the requirement on the prosecution to prove its case beyond reasonable doubt. That bedrock does not change. 
 The concern that lies behind the phrase that the hon. Member for Southwark, North and Bermondsey used and behind several points that the hon. Member for Beaconsfield made was, as I indicated when we discussed clause 27, mentioned extensively in Sir Robin Auld's report. It may be helpful if I remind members that he quoted from the Runciman royal commission, which said: 
''Disclosure of the substance of the defence at an earlier stage will no more incriminate the defendant nor help prove the case against him or her than it does when it is given in evidence at the hearing.''
 In that famous phrase from the report, Sir Robin Auld says: 
''I can understand why, as a matter of tactics, a defendant might prefer to keep his case close to his chest. But that is not a valid reason for preventing a full and fair hearing on the issues canvassed at the trial. A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth''.
 That is about trying to enable the court process and the trial to focus on the key issues. The more those issues are laid bare and understood before the trial starts, the better the chance that the trial will focus on them, with a view to reducing delay. That is one consideration, not because speed is the main objective but because focusing on the issues that really matter is. 
 I shall deal first with amendment No. 185, and I hope that I can offer the hon. Member for Southwark, North and Bermondsey the assurance that he and the hon. Member for Beaconsfield seek. We do not think that the amendment is necessary, although we agree with the principle behind it. In the interests of ensuring a fair trial, courts will invariably consider representations from all parties before making an order for the cross-service of defence statements. A court may make many orders during a trial, and those will be made after considering any representations that parties may wish to make. To provide specifically in statute in every case that an order cannot be made without considering representations would be an unnecessary elaboration. For orders for which that provision does not appear in statute, it might suggest two classes of order—one that considers representations and one that does not. 
 It is envisaged that, if required, further details of the procedure to be adopted for cross-service applications, including the consideration of representations, may be included in rules of court. 
 Amendments Nos. 134 and 227 concern the procedure for cross-service of initial and updated defence statements respectively. Clause 28(1) tries to fill a gap in the disclosure procedure that the Criminal Bar Association drew to the Government's attention. It requested that urgent consideration be given to the lack of guidance available. However, since the Bill was introduced, the Court of Appeal on 22 November 2002, in the case of Regina v. Cairns and others, held that the court could order cross-service. The clause provides statutory backing to the court's decision. 
 Subsections (1) and (3) give the judge power to order cross-service of initial and updated defence statements to co-accused, either through the judge's motion or on application by any party. That power is discretionary because there may be circumstances in which it is not appropriate to order cross-service. That was picked up in several contributions, including that from the hon. Member for Beaconsfield. The aim is to improve fairness to all parties. 
 The sequence of events that the two amendments would impose, conflicts with the provisions in section 5 of the 1996 Act and in proposed new section 6B(1). Section 5 requires the accused to serve his initial defence statement simultaneously on the court and the prosecutor after receiving initial prosecution disclosure of unused material. Proposed new section 6B(1) also requires the accused to serve his updated statement on the court and the prosecutor simultaneously. On receipt of the initial defence statement, the prosecution have a specific duty to review the unused material and make further disclosure to the defence if necessary. In the case of the updated statement, the prosecution's continuing duty to disclose will apply. 
 Our intention is that any cross-service of initial and updated defence statements will take place after service on the court and the prosecution. Before reaching a decision on whether to order cross-service, it may be necessary for the court to consider all the co-defendants' statements and any representations made on the issue of cross-service. In parallel, the prosecution will review the unused material in the 
 light of the defence statement and provide further disclosure to the defence, if necessary. 
 It would be impractical to require the cross-service of the initial and updated defence statements at the same time as service on the prosecution in every case. That would not take account of the circumstances in which the judge may decide not to order cross-service. Although I understand the general thrust of the hon. Gentleman's point, it would be inappropriate to enshrine it in statute in the way that he suggests. 
 Clause 28(2) introduces more detailed requirements for defence statements. Amendments Nos. 133, 187, 188, 135, 189 and 226 would modify those requirements. 
 Subsection (1)(b) of new section 6A of the 1996 Act requires the defence to indicate the matters of fact on which they take issue with the prosecution. Amendment No. 133 would restrict that requirement to cases in which the prosecution provide a case summary. However, the prosecution are not generally required to serve a case summary, and the amendment would not make that a requirement. Thus, it would nullify the existing important defence statement requirement in the majority of cases. 
 On the broader point, we do not consider it necessary to require a prosecution case summary in all cases, because the defence will often have sufficient information about the prosecution case to prepare their statement. After all, the prosecution are required, before the trial, to give the defence copies of the evidence—witness statements and exhibits—that they intend to use against the accused. Additionally, they are required to undertake initial disclosure of unused material that meets the new test set out in clause 27. In essence, a prosecution case statement is required. 
 I recognise the benefits of such a statement in complex cases and in health and safety cases, to which the hon. Gentleman referred, but it would be unduly burdensome to require one in all cases.

Dominic Grieve: It might not be such a bad thing to require a prosecution statement in all cases. I accept that it might be an onerous burden, and the CPS, which deals with many cases, might find it difficult. However, that was not my intention, although it may be an unintended consequence. I intended to say that no requirement to supply a case summary dictates the amount of information that must be supplied about the factual matters in dispute. What concerns me is that it is unfair to require the defence to trawl through a multiplicity of witness statements to identify every fact with which they disagree.

Hilary Benn: I shall try to deal with that point, because it also relates to amendment No. 187, which would remove the requirement for a defence statement to set out matters of fact that the accused disputes with the prosecution.

Ian Lucas: As regards the onerous burden placed on the Crown Prosecution Service, authorised officials or lawyers employed by the CPS will carry out a vetting procedure in all cases. Would it not be good practice, as a discipline, for a brief case summary to be prepared
 in each case? I found that that helped me to assess cases that I was preparing.

Hilary Benn: I am not arguing with the suggestion that it would be helpful to do that where appropriate. That is not meant to be a flippant answer. I am simply saying that it is inappropriate, given the amount of information that the prosecution already disclose, to impose a requirement in every case. I think that my hon. Friend accepts that that would be the unintended consequence. The purpose of defence statements is to assist the process of prosecution disclosure. As my hon. Friend identified, the to and fro of information may bring to light facts that lead to the prosecution being discontinued, so the process is helpful in avoiding unnecessary trials. Furthermore, as we have discussed, such statements are intended to clarify the issues.
 The reason behind all the proposed changes is that current legislation is not working as Parliament intended, and Sir Robin Auld carefully and thoroughly identified that problem in his report. The independent research commissioned by the Home Office found that 52 per cent. of a sample of 115 defence statements contained a bare denial of guilt—''I did not do it''—or did not meet the requirements of section 5 of the 1996 Act. The greater detail required of the defence under clause 28 and related clauses will give effect to the spirit and, indeed, the letter of the original legislation. It will add to the obligations on disclosure.

Vera Baird: I do not think that the principle of requiring more information, which the Minister has outlined, is at all contentious, and I have not heard it disputed. The issue that I am trying to plumb is what degree and depth of information and disclosure will be required to avoid the penalties that back up the requirements on the defence. The move to match requirements with what happens in case summaries is an attempt to answer that question. We are presumably saying that if we get a certain amount from the Crown, it is fair enough to give the same amount back. How else can the defence gauge matters if they are to be sure that they will avoid penalties?

Hilary Benn: I will come to that point a little later. It is important because it provides the context in which judgments will be made about the information that is disclosed.
 As regards matters of fact, section 7 of the Criminal Procedure and Investigations Act 1996 requires the accused to disclose 
''matters on which he takes issue with the prosecution''.
 The new provision merely clarifies that what is required are details of disputed matters of fact, by which I mean those that are known when the statement is submitted. Other issues may arise later, but no one could have anticipated them. I think that we all accept that, in the course of a trial, just as in the course of a debate on a Bill in Committee, issues come up that one had not anticipated, and they must be dealt with at that time. 
 May I also reassure hon. Members that we are talking not about every dot, comma and fact, but about the main facts. The defence will not be required to rebut, point by point, everything in every witness statement.

Dominic Grieve: I appreciate that that is the intention, but I am not sure that that is how it appears when one reads the Bill. I agree that a judge might get a bit shirty if someone started complaining because some nitpicking issue on page 16 of a verbose witness statement had not been adequately challenged earlier. However, that seems to be the direction in which we are going. I thought that amendment No. 133 went a long way to deal with the problem by introducing the idea of a prosecution case summary.

Hilary Benn: I hear what the hon. Gentleman says. In the end—this, in essence, answers the point raised by my hon. Friend the Member for Wellingborough about the interpretation of clause 34 and proposed new section 11(5)—the prosecutors and the court will have to take a view on whether any defect in the defence statement is a ploy on the part of the defence or simply the result of the fact that the information that emerged was different from what was expected or what was known at the time. They will be in a position to comment or to seek to draw attention by way of adverse inference if it is deemed to be a deliberate ploy. We shall have to rely on the court, the judge, the prosecution and, ultimately, the jury to weigh all of those things in their minds in reaching a decision. I was trying to reassure the hon. Gentleman about the practicality of the volume of material required in relation to disputed matters of fact, which is what he asked about.
 Amendment No. 188 would remove the defence statement requirement to indicate points of law that the accused wishes to raise and the authorities intend to rely on. Determination of legal points, such as the admissibility of evidence or Human Rights Act issues, takes place in the absence of a jury. Generally, to make best use of a jury's time, judges seek to deal with such points, if possible, either before the jury has been empanelled or at the very beginning of a trial. Clearly, advance notice is necessary to enable such arrangements to be made. Advance notice of legal points is already required for defence statements ordered in preparatory hearings for fraud and other complex or lengthy cases. The aim of this provision is to assist the management of other criminal proceedings where legal points arise. Turning to amendment No. 135—

David Kidney: Further to the point made by my hon. and learned Friend the Member for Redcar, can my hon. Friend envisage circumstances in which the court would punish the accused—in terms of adverse comment and adverse inferences at the trial—for not raising points of law and legal authority through lawyers at an early stage? It seems that it would never be the fault of the accused, so why is the point necessary?

Hilary Benn: I thank my hon. Friend for that helpful intervention. I cannot conceive of circumstances in which we would say to someone that, because his knowledge of the law was
 insufficiently developed, either as a defendant or as a defendant's legal representative, he should be penalised in relation to the charge that he was facing. We need not worry about that.
 The intention of the defence statement is to require the accused to look forward to the trial on the basis of the information that he has before him. Requiring issues of laws to be raised will assist the judge in the management of the trial.

Paul Stinchcombe: To what degree of detail would my hon. Friend expect the defence to set out the point of law that it intended to raise? He will be aware that in many civil cases, certainly in the High Court, there are obligations to provide skeleton arguments. Would the defence have to go that far, or would it simply have to state the point that it wished to raise?

Hilary Benn: I think that it would be useful if I were to write to my hon. Friend about that important point, and to circulate my reply to the rest of the Committee, as has been my practice with the other letters that I have written.
 Returning to amendment No. 135, it would not be helpful to remove from the accused the obligation to set out the points of law that he intends to use. If the amendment is prompted by concerns that the accused may wish to amend that part of his defence statement later on, it is covered by the provisions of the clause, and in particular subsection (3). 
 Amendment No. 226 would provide that the requirement for the defence statement to include any authority on which it intends to rely should be linked with the requirement to indicate any point of law that it wishes to make. We do not consider that to be necessary, because subsection (1)(d) provides that the accused must indicate any point of law on which he wishes to rely and any authority on which he intends to rely for that purpose. That already happens in more serious cases. It is a very good example, and it could be usefully extended. 
 I turn to the requirements relating to alibi witnesses. Amendment No. 189 would remove the requirement for the accused to provide any information about an alibi witness if he were unable to comply with the requirement to provide name, address and date of birth. Of course, advance notification of defence alibi witnesses is a long-standing practice, and subsection (2) of new section 6A of the Criminal Procedure and Investigations Act 1996 largely replicates the existing alibi notice requirements contained in section 5(7) of the 1996 Act. That, in turn, replicated the previous alibi notice requirements in section 11(2)(a) of the Criminal Justice Act 1967, which were repealed by the 1996 Act. 
 It has long been recognised that, if the defence intend to adduce alibi evidence, the court and the prosecution should be given advance notice of it. The purpose of this provision is, bluntly, to inhibit the late fabrication of alibi evidence and to prevent juries from being misled by evidence being called at the last minute—evidence that the prosecution have had no opportunity to check or rebut. That is why we propose that the accused should have to provide details of the name, address and date of birth of any alibi witness. 
 If the accused does not possess any or all of those details, he is simply required to provide any other information that might assist in identifying and locating the witness. Removing that second option would mean that if the accused did not possess precise details of the alibi witness, he would be under no obligation to provide any information at all, which would undermine the whole purpose of the advance notice requirement. For that reason, I would resist that change. 
 Amendment No. 136 would remove the power conferred by subsection (3) of new section 6A on the Secretary of State to make regulations on the details of matters to be included in the defence statement. The Government hope that the changes introduced by new section 6A will have the desired effect of improving the quality of defence statements. However, the regulation-making power will enable further and more detailed guidance on the contents of defence statements to be issued if it should prove necessary. The provision will allow us to respond more quickly and flexibly to that need than is possible under primary legislation. 
 I apologise for the length of that response, but a large number of points were raised in debate. In the light of my explanation and of the reassurance that I have been able to offer, I hope that the amendment will be withdrawn.

Dominic Grieve: I am extremely grateful to the Minister. He has indeed provided a great deal of reassurance. Some amendments were probing amendments, to get the discussion going, but others were designed to examine one or two areas that caused concern. I hope that he will forgive me if I come back on two points that emerged from the debate. I would be grateful if he would consider taking them away and thinking about them again.
 First, amendment No. 133 raised the issue of the prosecution case summary. I took the opportunity while the Minister was speaking to re-read that amendment. If it had been incorporated into the Bill, such a provision would not have prevented a defence statement from being given. There would still have been a need for a defence statement, but it would have covered only the matters of fact on which the defence took issue with the prosecution—as opposed to setting out the nature of the accused's defence, including any particular defences on which he intended to rely. 
 Perhaps I was being too kind to the CPS when I said that it might be an onerous burden. I accept that a requirement to produce a case summary would be an extra burden on prosecutors, whether it be the solicitors and the CPS, or counsel preparing for a case in the Crown court. On the other hand, as I have found, a case summary is a vital document for a number of reasons. First, it clarifies in the prosecutor's mind whether he has all the evidence; secondly, it can usually be used as the opening note in a contested case before a jury; thirdly, it can be used to open the case on a guilty plea. It is an enormously useful tool, and once it has been produced I suspect that it saves a great deal of time. 
 Furthermore, if a case is so simple that we are concerned only about one or two witness statements, the case summary itself is likely to be extremely simple. If a case summary is not served, the prosecutor will still get the nature of the accused's defence, but he will not get a detailed rebuttal of matters of fact. I cannot help thinking that amendment No. 133 would introduce a simple and fair method of resolving the issue, which would not lead to an excessive burden being put on the defence—either on the defendant himself or on his representatives. 
 I shall not press the amendment to a Division, but I ask the Minister to assure the Committee that he will consider afresh whether that might be a way of preventing disputes in court, with a prosecutor arguing that there has been a failure on some material point in a witness statement that, quite reasonably, might not have been thought by the defendant to be particularly important and could easily have been missed. It would provide an extra safeguard; it might even streamline the system. 
 Secondly, clause 34 deals with the failure to draw attention to legal issues. I was very persuaded by the argument of some Labour Back Benchers—it also tied in with the point that I made in opening for the Conservative party—that it is often difficult and it is certainly not the defendant's fault. In those circumstances, it is be difficult to see how adverse comment could be made other than to the professional body of which the lawyer is a member—but certainly not to the jury. Perhaps the Minister will consider whether clause 34 should amended, so that non-compliance with the provisions in new section 11(2)(d), made under clause 34, could no longer be made a subject of comment.

David Kidney: Just suppose, as an addendum to those comments, that the lawyers at fault could be punished in costs.

Dominic Grieve: They could indeed, although as the hon. Gentleman knows, the procedure for punishing lawyers in costs seems to have become extraordinarily complicated—perhaps to the lawyers' benefit. He is quite right, however, that that would be the sensible sanction to be visited on the lawyer, because a failure to raise a legal point will inevitably lead to the prosecution being granted an application for an adjournment if time is needed to consider it. That is the true impact that it would have on the case, and little else.
 With those two comments in mind, and the vague hope that the Minister might say that he will look afresh at the provisions, I shall not press my amendment to a Division. We might come back to those two matters on Report if they cannot be satisfactorily resolved now, but I hope that that will not be necessary.

Simon Hughes: I am reassured by the Minister's response to amendment No. 185; it will help if it is made clear that representations from both sides are expected before decisions are taken.
 On the more substantive point, although I understand the arguments of the Minister and of the hon. and learned Member for Redcar, a fine line is to be drawn on whether the defence is being asked to help the cause of justice or to help the prosecution. I have no problem with the defendant being asked to help the cause of justice; whether innocent or guilty, the rules of the process require the defendant to co-operate with the system in a reasonable and sensible way. People who are acquitted will not have enjoyed the process, and they may feel that they have had a terrible time, but they need to be required to comply. 
 The consensus of opinion is that we must be careful not to create prejudice through imposing requirements that are impossible or impracticable to fulfil. That point was made by both Government and Opposition legal practitioners. Although the Minister may return to the matter, the key point is that defendants should not suffer prejudice if they do not make a statement of facts or of law in two of the categories in the defence statement as full as it will need to be in the end in order to deal with all the points raised during the trial. 
 In a way, there is a protection against that wrong interpretation because there is a chance to come back to those matters again—a sort of second round of disclosure. It is becoming a bit more like the civil process, in which pleadings are served before the trial, but in which the issues have narrowed to matters of contention by the time of the trial. We are not talking about a civil process, but lessons from the civil procedure should be learned, provided that the absolute bedrock, reaffirmed by the Minister, remains the case. That bedrock is the key difference: that it is not a balance of probabilities proof but a beyond reasonable doubt proof. 
 I shall not seek to divide the Committee on the other matters. The Minister has heard expressions of concern from all parts of the Committee. I hope that he will reflect on them. The only matter of concern that may not have been answered as fully as the hon. Member for Beaconsfield suggested was raised in amendment No. 189. That matter was picked up by the hon. and learned Member for Redcar. I did not mean to mislead the Committee by saying that names and addresses appear as a matter of course in prosecution statements—the names will appear but not the addresses. 
 We must be careful, however that we do not end up with the defence having to supply the names and addresses of witnesses on whom they rely, thereby giving the prosecution an advantage that the defence do not have. One of my great concerns is that if we supply the name and address of a witness who may be a rogue or a vagabond, the police can do various things to interfere with or influence that witness. I appreciate that we can deal with that question in another context, but I flag it up as a concern not least because the police have access to the computer and can discover whether the witness has previous convictions—facts that may not be known to the defence. 
 We must be careful not to put a burden on the defence to do something that cannot be avoided, because it will be stabbing in the dark and to their 
 disadvantage. That has been a problem in many cases, and we must learn from that experience. For instance, the hon. Member for Beaconsfield and I would commonly practise as prosecution and defence lawyers and so understood the argument from both sides.

Vera Baird: I recall on Second Reading that the Home Secretary gave an undertaking that a code of practice would be introduced on how the police should interact with defence witnesses. In particular, I think that it would always include the protection of requiring a defence solicitor to be present at all meetings. That must go some way towards reassuring the hon. Gentleman.

Simon Hughes: It does indeed.
 Our concern has been registered. Like the hon. Member for Beaconsfield, I anticipate that we may come back to these matters on Report.

Hilary Benn: I acknowledge what the hon. Gentleman said, which we shall come to when we debate clause 29. Indeed, my hon. and learned Friend was right in her recollection of the assurance that was given.
 On the impact of clause 28, as interpreted by new section 11(5) in clause 34, I must point out that one needs to read also subsections (6) and (7) in that new section, as they relate to clause 28. I hope that those subsections will offer further reassurance to those hon. Members who have understandably expressed concern about the basis on which adverse inference might be drawn. We have given consideration to the points that have been raised, but it is only right and proper that adverse inference is drawn if there is reasonable justification for so doing. Indeed, that is specifically provided for by new section 11(7)(b). 
 I hear the comments that have been made on those two issues, and if we return to them on Report our extensive debate will doubtless continue.

Simon Hughes: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 137, in
clause 28, page 18, line 14, at end insert— 
 '(5) Regulations under subsection (4) may only be made if a draft of the statutory instrument has been laid before and approved by a resolution of each House of Parliament.'.
 In clause 28 (2), new section 6A(4) states: 
''The Secretary of State may by regulations make provision as to the details of the matters that, by virtue of subsection (1), are to be included in defence statements.''
 We have had an extensive debate about the nature of the contents of the regulations, but I am concerned about the possibility of their being altered without the scrutiny of the House. The amendment would require an affirmative resolution. It is a simple matter, but I would have thought that something of such potential seriousness ought to have a measure of scrutiny, and that an affirmative resolution would be the right way to go about it. 
 I would not expect the regulations to be changed frequently; I would expect them to be changed only 
 after consultation; and I would expect Parliament to have some input if the Secretary of State is taking responsibility for the regulations. I commend the amendment to the Committee.

Hilary Benn: I can accept the amendment. In all honesty, consideration has to be given to the circumstances in which it is appropriate to use the affirmative and negative resolution procedures. I go back to our earlier discussion on PACE—we must have regard to the sum total of the potential affirmative resolution burden on the House. I have thought carefully about it, however, and I am mindful of the recent report of the Delegated Powers and Regulatory Reform Committee, which generally put its thumb up in favour of the affirmative resolution.
 Matters to do with court procedure are normally dealt with by negative resolution. Although I am prepared to accept the amendment, I do not want it to be thought that that principle will be changed. I am persuaded by the hon. Gentleman's argument because of the nature of the issues that will be addressed when further changes are made, and because the present changes were made by way of primary legislation. I am prepared to accept the amendment, and I hope that that assists the Committee.

Simon Hughes: I did not intervene earlier because an amendment in the previous group would have removed something but put nothing back in its place. The amendment is a welcome move in the direction that we were seeking to argue, and I am sure that it will be well received. I am grateful to the Minister for understanding that it is important that such matters receive parliamentary clearance before becoming the law of the land.

Dominic Grieve: I, too, want to express my gratitude.
 Amendment agreed to. 
 Clause 28, as amended, ordered to stand part of the Bill.

Clause 29 - Notification of intention to

Simon Hughes: I beg to move amendment No. 195, in
clause 29, page 18, line 36, leave out 'must' and insert 'may'.

Eric Illsley: With this it will be convenient to discuss the following amendments:
 No. 196, in 
clause 29, page 18, line 40, leave out from 'himself)', to end of line 41.
 No. 197, in 
clause 29, page 18, line 42, leave out paragraph (b).
 No. 198, in 
clause 29, page 19, line 6, leave out 'must' and insert 'may'.
 No. 199, in 
clause 29, page 19, line 15, leave out 'must' and insert 'may'.

Simon Hughes: The amendments relate to an important issue, which we touched on during the previous debate. The clause is about how, when and to
 what extent the defence must indicate the witnesses who will be called. The amendments, which are probing, would seek to make it optional rather than mandatory that the accused should give the court and the prosecution notice of whether he intends to give or call any evidence at trial, and if so what.
 Amendment No. 196 tries to raise the question of what would be appropriate if some details of evidence have to be given. At the moment, the general proposition is that the accused must give the name, address and date of birth of each proposed witness. That raises the issue that we touched on in the last debate, in which the hon. and learned Member for Redcar intervened. The guidelines are helpful, but there is still considerable concern that the prosecution—to be honest, the police rather than the prosecution—are put in a relatively favourable and influential position by such disclosure because it goes further in assisting them than it does the defence. 
 I raised the question earlier of the difficulty of getting people to give evidence. Many are reluctant to give evidence for the prosecution, for reasons that we know; but people are often unwilling to give evidence for the defence for similar reasons. For instance, those with a criminal past may be particularly reluctant to be exposed in the witness box, although they may have a clear story to tell and a perfectly good reason for telling it. Why cannot there be equivalence? 
 We have now established that when the accused signs the initial document it becomes the statement in the bundle of prosecution papers, and it will include names, which may or may not be sufficient clearly to identify the prosecution witnesses. Why cannot we limit the obligation to the other side, so it gets only the name? I do not understand the argument, except for the fact that it may allow the police quickly to check. The police and the prosecution have the capacity to access information in a way that is not open to the defence. The police have access to the police national computer, to the database and other files; they can easily track and trawl through the names. If the defendant is named John Smith, he could be one of a huge number of people, but those with less common names will be far more easily tracked down. All those who have written to me and other members of the Committee, whom I anticipate have a professional interest in the matter, have expressed a concern about the imbalance of the proposal. 
 Amendments Nos. 198 and 199 are similar to amendment No. 195, which would make optional what is now mandatory. 
 Amendment No. 197 was tabled jointly by the two Opposition parties. It raises the question of how far we should expect the defence to go. This is where I think we may have crossed the line between the interests of justice and those of the prosecution. New section 6C(1)(b) states that the accused ''must''—he has no choice— 
''provide any information in the accused's possession which might be of material assistance in identifying or finding any proposed witness in whose case any of the details mentioned . . . are not known to the accused''.
 Apart from the protection of witnesses, there are two other practical points. Many potential witnesses are not needed in the end. We touched on that before. There are huge numbers of trial calls, when witnesses are lined up, but the case never gets that far. They are never needed. Perhaps the prosecution chief witness does not come up to proof. 
 The people involved, who are already nervously on the boundaries of the criminal justice process and would prefer not to be there at all, but have been asked by the defence to give evidence and are willing to do so if pushed and encouraged—or, sometimes, of course, required to come by subpoena—might never be used as witnesses. There is a practical question about handing over information. Witnesses who are persuaded to go that far are potentially much more exposed to police scrutiny, but their evidence may then not be used. 
 Secondly, although I would be grateful for more information, my understanding is that what are called ambush defences are rare. I did not see in the Auld report, and I do not remember seeing in any of the other preliminary work, anything to suggest that it is a common feature of the criminal justice system for unexpected witnesses to bounce in to tell a story that was entirely unpredicted. I am not talking about alibi evidence, but about other people giving evidence, such as that they were present on the day in question. If I am wrong about that, and if there is a real, recurrent and significant cause for concern that the provisions would answer, the Minister should tell us. I ask Ministers to consider sympathetically a proposal to examine the wording again. 
 In an ever evolving trial, as in the ever evolving proceedings of a Committee, issues may change, and those that were not expected to have much importance grow bigger. However, as the hon. Member for Beaconsfield pointed out, defendants often do not face up to all the questions that they should face up to. I used to see huge numbers of people who, having been asked the key questions at our first meeting, would, at court, just before the trial or sometimes after it had begun, suddenly think of a crucial fact or witness. The memory might be prompted by seeing someone in court. To phrase it in a rather clichéd way, the more disordered the life of the defendant, the less easy it is for him to tell his representative how to prepare the case. 
 The same is not true for those running the prosecution. They do what they do all the time—it is their job. The police are part of the evidence process in the criminal justice system. The staff of the Crown Prosecution Service, doing their daily job, are paid by the taxpayer. The people who turn up at court are paid by the taxpayer to do so. On the one hand there are those who are engaged in such activity all the time, and on the other there are people who are not, and who often have not confronted the practicalities of what they are being required to do. Therefore it seems to me that we should proceed with great caution. We should ensure that we do not prejudice a defendant by imposing an obligation that he cannot—or at least not easily—fulfil. He should not be obliged to do something that would prejudice him or the witnesses.

Dominic Grieve: I share the hon. Gentleman's anxieties on some matters, but not all. I do not find the principle of supplying the name and address of a witness whom one intends to call a difficult concept. I do not understand where injustice flows from in that.
 A couple of matters sprang to mind while the hon. Gentleman was speaking—during which time, oddly enough, I re-read the clause—that cause me greater concern or at least prompt me to seek clarification. In many cases a defendant clearly knows that there is a witness called Mr. X, and where he lives. Sometimes he may know exactly who that person is, but not his address. In some cases, the defendant may refer to a person who he thinks might be able to help his case because he believes that he was in the vicinity of the events in question. There seems to me to be a slight lack of clarity about who is covered in the phrase 
''he intends to . . . call any evidence''.
 On the whole, until one has seen the proof of evidence of someone whom one has asked to attend as a witness, one is in no position to decide whether to call him. Until then, he is a speculative bystander who may or may not be able to help. 
 When I read the clause I took it that the requirement to disclose the names of witnesses related to someone whom a defendant and his legal advisers had decided to call to give evidence on his behalf. I would normally be surprised if that person's address were not known, unless, perhaps, after the witness statement had been obtained or the witness had been spoken to, he had moved and it was not possible to trace him. In that case, one would refer to him in such terms as ''Mr. Bloggs, previously of this address, but I do not know where he is at the moment.'' 
 However, perhaps the intention is that a defendant will be required to inform the prosecution of people who he thinks might be able to help him, although he has not really any idea whether they will be able to. I had not understood that to be the thrust of the clause. If it is, I am slightly concerned that it goes too far. How on earth can someone decide whether a person who may be able to help should be called as a witness, without having had an opportunity to look into the matter? I do not think, in those circumstances, that a defendant should be required to tell the prosecution that he thinks there might be someone who can help him, but that he has not yet been able to trace that person, and that while he believes his name is so and so, he does not know where he lives. I hope that the Minister can follow the distinction. I should be grateful for his clarification of what is intended. 
 I think that unfairness could result from the interpretation of the clause that I have outlined. It might require a defendant to communicate the names of people who might turn out to be hostile witnesses, through no fault of the defendant's. He would be under no obligation to call them, and indeed would not want to. The matter could be used against him by the prosecution in the course of the trial. I should not want that to happen.

Vera Baird: I want to be sure that I am following the interesting point that the hon. Gentleman is
 making. Does he mean that new section 6C(1)(b) of the 1996 Act would not simply require the provision of information to the prosecution in substitution for a name of address that was not available? Might it include saying, ''I am going to call the man who was passing in the blue car, if I can find him''? That would present a real danger that the defence would go to the trouble of finding the man in the blue car, and would have to disclose that fact to the Crown, only for him to turn out to be a hostile witness or a sworn enemy. Perhaps, however, the Minister can clarify that the intention is only that the defence should have a duty to give as much information as possible to the police to help them to locate him.

Dominic Grieve: The hon. and learned Lady is right. That is exactly the point. Anyone who wants to call a witness is first entitled to decide whether he wants to. Usually, the only way to do that is to obtain a proof of evidence, obtained from his solicitor, on the strength of which he may decide, ''Oh yes, he will be helpful to my case; I can call him.'' At that point he tells the prosecution the name and address, and if for any reason he cannot, he should provide all the information that he can to enable that person to be contacted. However, I do not think that he should be placed under the burden of identifying speculative witnesses whose names and addresses he does not know, who might turn out to be of no assistance to his case at all, and whom he might not wish to use. The important thing is the point at which the defendant has come to a firm decision with his legal advisors to call someone as a witness.
 There is no amendment about my final concern, which may simply be to do with the drafting. New section 6C(1) of the 1996 Act says: 
''The accused must give to the court and the prosecutor a notice indicating whether he intends to give or call any evidence''.
 Is the word ''give'' supposed to be a reference to the evidence of the accused? I see some nodding from the officials. I am a little puzzled. If a defendant chooses not to go into the witness box—I see the Minister is about to interrupt me.

Hilary Benn: I am anticipating a point of procedural difficulty. It might be helpful for the hon. Gentleman to refer to the nod that he saw in confirmation of his points as coming from me.

Dominic Grieve: Indeed. I shall refer to the nod from the Minister.
 When a defendant does not go into the witness box to give evidence on his own behalf, that can be a legitimate matter of comment in a case. I do not have any problem with that. However, it seems that on at least one reading the defendant could be subject to a double comment: ''You haven't gone into the witness box to give evidence'' and, ''You told us you were going into the witness box to give evidence''. I am not sure that the latter comment is fair. 
 However, I appreciate that the point is arguable. There may be those who say, ''Well, you should jolly well decide whether you're going to go into the witness box, and tell the prosecution.'' However, the argument 
 bothers me. Events always take place at trials that may prompt defendants to decide not to go into a witness box. The Minister may be familiar with the way in which one's client is required to sign the back sheet, as advised, about all those matters on which he has chosen not to give evidence. It would be straying into difficult and murky water if there was a criticism of the defendant not only for not going into the witness box, but for saying that he would do so. I frankly do not think that that is necessary: it is a double comment. In those circumstances, I wonder whether it would not be sensible—no amendment was drafted, as I had not thought about the matter—to remove the word ''give''.

Simon Hughes: I want to make explicit something that was implicit in what the hon. Gentleman said, and on which I hope he will agree with me. Many is the trial in which the decision on whether the defendant will give evidence is taken only at the end of the prosecution case—rightly so, in the light of the nature of the evidence. To anticipate that is also a prejudice, in the sense that it suggests that one might at least have changed one's tactics for an improper or peculiar reason.

Dominic Grieve: I am grateful to the hon. Gentleman. I apologise to the Minister: had I twigged on reading the relevant passage, I would have tabled an amendment. I am therefore raising a matter on which he may not have had a briefing note. In so far as he is able, having not been alerted to the matter, could he justify the inclusion of the defendant in the category? I would also be interested to see why that is thought to add anything, when it is already possible to make adverse comment on the defendant's failure to give evidence.

Paul Stinchcombe: I wonder whether the answer might be provided by new section 11(4)(b) of the 1996 Act, as detailed in clause 34, which says that a comment can be made only when a witness not included in a witness notice is called, rather than when an included witness is not called.

Dominic Grieve: The hon. Gentleman makes a good point. However, is not that all the more reason to query why the provisions have been included at all? In such circumstances, they could only place pressure on the defendant about whether he intends to give evidence himself, a question that a defendant should not properly be asked. I agree entirely with the hon. Member for Southwark, North and Bermondsey on that point. The time comes when the defendant has not gone into the witness box and damaging adverse comment can then be made. There should not be a requirement on the defendant in that context. Suppose he changes his mind. If no further adverse comment could be made under the provisions, the only adverse comment that can be made is that which can currently be made.

Paul Stinchcombe: In which case, would not most defendants simply include their name and change their mind later, if they felt that that was appropriate, to no greater prejudice than that which currently prevails?

Dominic Grieve: Well, yes, but in that case, why should there be a requirement? If there is no sanction in failing to go along, what is the requirement's purpose? As practitioners know, the issue of whether a defendant gives evidence is often difficult and traumatic, and a subject of dispute between counsel and defendant, hence the back sheet endorsement. With those problems, I think that the requirement is a mistake and will cause difficulties to practitioners. To comply, they will have to tell clients, ''Well, you're going to have indicate whether you intend to give evidence or not.'' I suppose that some may read the Hansard report of the Committee, but others may think that there might be some sanction over and above that which currently exists. If the requirement is not necessary, I ask the Minister to consider whether it might not be removed.

Hilary Benn: May I undertake to reflect on the fair point that the hon. Gentleman has made, and to which we can return? I hope that that is helpful.
 The hon. Member for Southwark, North and Bermondsey asked a question about the list. It is supposed to include only those whom the defence intend to call, rather than being a speculative list. He also asked a question about ambush defences, which he acknowledged are rare. The royal commission on criminal justice Crown court research study No. 19 drew attention on page 142 to a survey that was done of prosecution barristers. According to that group, ambush defences were reported in 41 out of 601 cases in which there was a substantive reply to the question. That is some 7 per cent. The answer to the hon. Gentleman's fair question is that ambush defences are rare, but they happen. The provisions are therefore sensible.

Vera Baird: Is that the research that was done for the Runciman Commission? If so, it is 10 years out of date, and expressed an opinion when there was, for instance, an adverse inference drawn from someone's not giving evidence or not setting out their case in interview. There is now much less scope for adverse inferences.

Hilary Benn: I accept entirely my hon. and learned Friend's point. The report that I referred to was published in 1993. However, the hon. Member for Southwark, North and Bermondsey asked what the research evidence was, as opposed to the general impression. I accept my hon. and learned Friend's point. However, to the extent that ambush defences might continue, the provisions are sensible.
 The clause is designed to redress the present imbalance between the prosecution and defence disclosure requirements in respect of witnesses. The prosecution has a duty to provide the defence with copies of all the statements made by witnesses whom they intend to call to give evidence at trial. That is disclosed as part of the prosecution case. 
 The principle of requiring advance notification of defence witnesses is already well established. At present the accused has to provide details of alibi and expert witnesses whom he intends to call. For trial management purposes, the accused also has to indicate the number of witnesses whom he intends to call at the 
 pre-trial plea and directions hearing. That means that, at that stage, the accused must have decided which witnesses he is likely to call to give evidence. To go a further stage and require him to provide the details specified by the clause merely builds on existing requirements. That strikes me as reasonable. 
 The advantages to the measure are that it deters surprise witness and ambush defences in so far as that remains a problem, helps to weed out incomplete, inadequate or false defences—indeed, it enables the police to make criminal records checks on defence witnesses, thus helping the jury to assess their credibility—and allows the police to interview defence witnesses before the trial, if necessary, and to make further inquiries. 
 The amendments would remove the mandatory element of both the witness notice requirement and its components. If the accused is under no obligation to comply, the clause is rendered ineffective. We consulted on the proposals and there was an even response in favour and against. 
 The final issue was identified by the Chairman of the Home Affairs Committee. The Government recognise that it will be important both to reassure defence witnesses who may be interviewed by the police or the prosecution before trial, and to protect the prosecution from unwarranted allegations of misconduct in the course of such interviews. My noble Friend Lord Falconer said in evidence to the Home Affairs Committee—I see the hon. Member for Witney (Mr. Cameron) acknowledging it—that we accept the need to ensure that suitable arrangements are made for the conduct of interviews with defence witnesses. On Second Reading, my right hon. Friend the Home Secretary undertook to provide for a code of practice. We are considering, in consultation with others such as ACPO, how best to achieve that. We aim to introduce proposals for an interview code for consideration on Report. 
 As my right hon. Friend has already said, we envisage that the code will include a requirement to offer a defence legal representative the opportunity to be present. That would be in line with the solicitors' professional conduct guide. We also envisage including guidance on the use of audio recording in appropriate circumstances—another point that was raised by the Home Affairs Committee.

David Cameron: Can the Minister clarify the pre-notification that the prosecution will have to make to the defence if it wants to talk to one of its witnesses? Will the code of practice be specifically mentioned in the Bill? The Select Committee recorded on 5 December 2002:
''We would prefer to see a provision of this nature be included in the Bill, rather than left to codes of practice.''
 In order to give us some certainty, will the code be referred to in the Bill?

Hilary Benn: The honest answer to the hon. Gentleman's fair question is that we are still considering the matter. However, I undertake to return to it on Report, and I am mindful, in reinforcing the comments of the Home Secretary on Second Reading, that the Home Affairs Committee
 has raised a fair and important point about appropriate safeguards, so that justice is seen to be done in the operation of the new requirements. I hope that it is helpful to know that we shall return to the matter.

Simon Hughes: I am grateful for the Minister's factual answer to the question about how often that sort of defence has arisen. As the hon. and learned Lady pointed out, we are now 10 years out of date, so I accept that the figures must be taken with a pinch of salt. If any later evidence comes to the Minister's attention, it will be helpful to know about it.
 In the case of many of the questions that have arisen during the debate, a fine balance has to be struck as to whether we should come back to them on Report. The Minister has gone halfway to reassuring us, but he will understand that it is appropriate to have further consultation and deliberation on issues that are still causing concern before we sign up to the clause, or decide that it is not something that we can sign up to. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill:— 
 The Committee divided: Ayes 12, Noes 2.

Question accordingly agreed to. 
 Clause 29 ordered to stand part of the Bill.

Clause 30 - Notification of names of experts

Simon Hughes: I beg to move amendment No. 200, in
clause 30, page 19, line 22, leave out 'must' and insert 'may'.

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 229, in
clause 30, page 19, line 25, leave out subsection (2).
 No. 201, in 
clause 30, page 19, line 28, leave out 'must' and insert 'may'.
 No. 230, in 
clause 30, page 19, line 29, at end add— 
 '(4) In the event of the expert evidence of a person named in subsection (1) above not being relied upon by the accused and no copy of his report having been served by the accused on the prosecutor, no reference shall be made of trial by the prosecutor or 
evidence adduced by him, to the effect that the accused had approached such person for his expert opinion.'.

Simon Hughes: The clause deals with notification of the names and addresses of experts instructed by the accused, and the amendments would simply make it optional, rather than compulsory.
 I want to take the opportunity to raise two issues, so that we need not return to them on clause stand part. First, the defence often seek expert reports. That is less true in legally aided cases, in which one must get authority to instruct experts. Defendants in such cases are unlikely to seek out and use a variety of experts, but those who are not legally aided, and who have the necessary finances, can do so. In seeking helpful expert reports, however, the defence may come across several bits of so-called expert advice that are not at all helpful, and the same may be true of the prosecution. The concern is that no prejudice should be attached to trying to find someone to deal adequately with a specific point, when the first so-called expert that one was advised to consult was unable to deliver. 
 There is also a constitutional point. There is obviously an entitlement not to incriminate oneself. There is plenty of case law on that, and there are plenty of precedents of judges ruling that measures must be taken to avoid self-incrimination. Have the Minister and his colleagues asked themselves whether the clause—with its compulsory, rather than optional element—prejudices that entitlement? Does it cross a line and put the defendant at risk by requiring him to reveal information that may be unnecessary? He may provide it in all innocence and in good faith, but it may not be helpful to him, through no fault of his own.

Dominic Grieve: To my mind, this is an important clause, and it has given me a lot of anxiety. I do not know how the debate on the amendments will develop, but I suspect that it will serve as a clause stand part debate. I therefore hope that I will be forgiven for widening the scope.
 In a delicate way, amendment No. 200 is a wrecking amendment. I do not mean that unkindly, but it effectively negates the thrust and bite of the clause. 
 I have tabled a couple of amendments, and I shall come to amendment No. 230 in a moment. It might just provide a compromise on a clause that I otherwise would find it difficult to support. 
 I turn to basic principles. We had an interesting debate a few minutes ago about whether the requirements of clause 29 would involve notifying the prosecution of the names and addresses of speculative witnesses of fact, whose evidence had not yet been tested. I was interested to hear the Minister's answer—I found it extremely reassuring—which was that that was not the intention. However, under clause 30 we have precisely that. The defendant who approaches an expert with a view to ascertaining whether that person might be in a position to give evidence that would help his case is required to reveal the fact that he has done so and to reveal the identify of that person to the prosecutor. 
 If one views witnesses of opinion and of fact as being identical in quality, the first major inconsistency is already creeping in. At the time when the requirement is being placed on the defendant to supply that information, there is no reason why he should have made up his mind whether to make use of that expert evidence. However, the matter goes further than that; the question is, what is an expert witness? In my view, an expert witness is a different animal from a witness of fact. He is brought in by the defence team, usually on the advice of the legal advisers, who want to know whether his professional expertise can provide evidence that could be placed before a jury—not to persuade the jury of a fact but to give information on which they can form their own opinion and judgment of the facts. I fail completely to understand the basis for this requirement. 
 What is the intention behind the clause, and what prompted the Government to believe that the provision was necessary? There may be a number of reasons. The first that I can think of—I detect that it may be the case, because I recall having read previous utterances of the Government on the subject—is that it is supposed to be an equal and level playing field. The prosecution will have a duty, if they approach an expert to back up their case who supplies a report that turns out to be unhelpful to their case, to disclose that information to the defence. 
 I do not think that that is a good analogy, however, because the duty on the prosecutor to make disclosure that we debated on clause 27 is the duty that lies upon the prosecutor as a minister of justice to ensure that no stone is left unturned, which includes taking points against himself, to ensure that justice is properly done during the trial. The duty upon the prosecutor is entirely different from the duty that falls upon those who represent a defendant. Their job is to listen to the defendant's case, to present his case in accordance with the facts, to challenge evidence in accordance with his instructions, and not knowingly to mislead the court on any matter; but they are subject to the defendant's instructions and the limits of his case. 
 The proposals drive a coach and horses through the legal professional privilege between a defendant and his legal representatives. If a defendant is in trouble he can give his legal representatives a case, which they think may be helped by expert opinion. However, if the expert opinion does not help that does not necessarily mean that the defendant has not been telling the truth; it merely means that they could not find an expert to help them. 
 What is the philosophical or practical reason for requiring the defence to divulge that information to the prosecution? It will make it very difficult for defendants and their representatives to decide whether they should seek expert help. That is the real mischief in this clause. Anyone advising a defendant would have to point out to him that, for example, an expert on how motor cars are constructed might be able to help him, but that if the expert could not help that might be used to the defendant's disadvantage. 
 What is the intention behind the clause? What use will the prosecution make of the information that they have been given?

Paul Stinchcombe: The hon. Gentleman makes an extremely interesting point. Will he consider the dovetailing of proposed new section 11(4)(b) and 11(10), set out in clause 34? It seems to me that we create two types of witness notice through clauses 29 and 30; new section 6C in clause 29, and new section 6D—expert witness notice—in clause 30. The proposed new section 11(10)(e) set out in clause 34 refers only to the ''witness notice'' of new section 6C and not to the expert witness notice of 6D. The proposed new section 11(4) states that only when a defendant calls a witness who was not included in a witness notice can adverse comment be made.

Dominic Grieve: We know that at present an expert witness is considered to be in a different category from other witnesses. If one is to rely on an expert witness at trial on behalf of the defendant, one must serve the witness's report on the prosecution beforehand. His existence and the defence's reliance on him are fully divulged. There may often be a prosecution expert to whom the defence are responding. Alternatively, there may be no prosecution expert and the fact that one must serve that expert's report is designed precisely to prevent any ambush defence. It also gives the prosecution every opportunity to find their own expert to counter fingerprint, ballistic or firearms evidence. All sorts of experts creep in and out of court.
 The hon. Gentleman is right; I find it difficult to see that clause 30 has any relevance to the possibility of an expert witness's being called without proper notice having been received by the prosecution. At present, if an expert were called at very short notice there would certainly have to be an adjournment so that the prosecution could find their own expert witness to counter what could be damaging evidence against their client. It might also be subject to considerable comment by the judge, if not to the jury then certainly to those who did it. He might even refuse to admit the evidence. 
 I take the hon. Gentleman's point. I can see the link-up in the text, but I cannot really see the practical link-up between clause 30 and clause 34, with its various sanctions.

Paul Stinchcombe: Looking at the interplay between those provisions, I simply wonder whether it would be possible for any adverse comment to be made at trial if an expert witness is indicated as likely to be called, only for him not to be called.

Dominic Grieve: That is absolutely right. However, I draw only two possible conclusions from the presence of the clause. It may be designed to allow the prosecution to be given notice that somebody has come up with an adverse report to the defendant. The prosecution can tootle to the expert and say, ''Why don't you come along and be our witness instead of his?'' That raises a host of practical issues about the status of the report that was provided, and I find it extraordinary in view of the availability of experts to give reports.
 A much more unpleasant possible consequence arises if a defendant has never had any intention of calling as a witness an expert to whom he has gone. The defendant would have to tell the prosecution that he went to that person, and it would emerge that he chose not to call him. That could be used as a weapon against the defendant in cross-examination or in the prosecution's speeches. It fills me with horror that we could contemplate something that would create such manifest unfairness.

Vera Baird: I, too, find this an interesting argument. A difficulty with seeing that as the major mischief behind the proposal is that it happens already. The hon. Gentleman has tabled an amendment to stop it from happening.
 A defendant's case may contain an issue for which expertise would be required. If the defendant does not call an expert, he is frequently asked during cross-examination, ''Have you instructed an expert? Are you calling an expert's evidence?'', only for no expert to appear to support his case. However, if the defendant has instructed someone, that person clearly did not disagree with the prosecution or else they would have been called. 
 My fear is that the prosecution will call the defence experts. They will have the master card in their hand at the outset, of saying to the expert, ''Who first instructed you?'' The prosecution will not only have an expert who supports their case but one who was originally asked by the defence to support theirs. That could have a massive—and pretty unfair—impact on trials.

Dominic Grieve: The hon. and learned Lady is absolutely right: that could be an even worse consequence.
 Amendment No. 230 was partly designed to find out the Government's intention. It would be prevent any reference being made at trial to the fact that the defence had originally instructed such an expert. 
 As the hon. and learned Lady said, that already happens, but it will happen far more if the prosecution have been handed on a plate the basis to behave in that way. Speaking as a prosecutor, I must say that it is a dangerous tactic, and one that can easily prove not to be in the interests of justice, to start lambasting a defendant for not bringing an expert to court. It would be a different matter had he chosen not to call a witness who happened to be sitting outside the court and who would have been in a position to provide useful evidence. 
 The clause makes me uneasy. I am happy to listen to the Minister. I tabled amendment No. 230 because I felt that it might help crystallise the debate. I also tabled another amendment to leave out subsection (2), because I cannot for the life of me understand the necessity of including it at all. I consider it otiose in relation to the totality of part 5. However, that is a drafting matter that I do not want to press further. An important point is at stake here. It is a great mistake to start wandering down this road, and I do not understand what the Government are trying to achieve by it. The damage that it will do will hugely outweigh any beneficial consequence to the 
 administration of justice, the search for the truth, or any of those other terms that we like to consider. The Government would do well to drop it.

Vera Baird: I perceive the mischief that the clause is intended to attack—at least, I think I might. I suspect that some of it derives from the Damilola Taylor case. In that case, as I understand it, the prosecution forensic pathologist was quite clear that the boy's death could not have been an accident. Because no defendants were under arrest by the time Damilola's parents wanted a funeral, the coroner ordered another post mortem to be carried out, to be furnished to the defence for such defendants as might be arrested and put on trial. The funeral then took place. No one but the defence ever saw the second post mortem report. It was not used in evidence. Consequently, it seems as if the inference to be drawn—certainly the inference of the Sentamu report—was agreement with the prosecution case that the death could not have been an accident.
 The defence did not call a third forensic pathologist, which was not possible, because the body was gone, but called an accident and emergency consultant, to say that in his opinion the death could have been an accident and that Damilola could have fallen on the bottle. I suspect that, granted that there were weaknesses in the prosecution case relating to the 12-year-old witness, and that a doubt had been raised as to whether the death was murder or an accident, the tactic of calling the accident and emergency consultant might have played a significant role in the acquittal. 
 I appreciate that the acquittal is generally seen as wrongful, but I have no view about it myself. I can see how lay people might be very concerned that what appears to have happened is that the Crown obtained a report concluding that there was a killing and the defence obtained a report that said the same, but hid it and produced something else saying the opposite. If that is what drives the clause it is, generally speaking, unnecessary for it to be used, for the tactic was an extreme one for anyone to have taken. In my opinion it came very close to not being a proper tactic. Certainly, if a defence barrister is aware that an expert report obtained for his client states X, he is not entitled firmly to put Y to a prosecution expert. The defence should be guided and restrained a little by the knowledge that they have a report in their pocket agreeing with the prosecution, from a credible expert, and that they cannot do a wholesale cross-examination of him. I can see, from reading about the case, the mischief on which the clause is focused, but I want reassurance that the technique in question is not used much. 
 Many mischiefs that could follow from the provision have been outlined by the hon. Member for Beaconsfield, and one is that legal aid limits the expert evidence that can be sought by the defence. The prosecution has, in theory, unlimited resources, and can obtain as many expert witnesses as it wants. Indeed, in an appeal in which I was involved, the McNamee case, 11 expert witnesses were called about a fingerprint. 
 The defence will apply to the legal aid fund saying that they need an expert report. The one they get may not be helpful, but they will have to disclose it to the prosecution. They might not then be given legal aid to get another, because they have exhausted their right to further aid. Even if, exceptionally, they do get it, and the second report supports their case, they will have already furnished the prosecution with the first report, and the score will be 2–1. That will pose a practical danger for the defendant. 
 I should add that expert reports are matters not of fact but of expert opinion. The defence might get a report from Dr. X, saying that the defendant has not got battered woman syndrome. They might then hand it to the prosecution but not be allowed to look for another expert, even though Dr. Y says that the defendant does have battered woman syndrome. That might make the difference in determining whether a victim of domestic violence who turns on her abuser is convicted of murder or of manslaughter. 
 For all those reasons, this is very dangerous territory. As far as I can see, the proposals can have only an adverse effect on the defence. At the same time, I wonder how they will assist the prosecution and the witnesses. How will they help victims, in whose favour we are trying to balance the criminal justice system? The Crown can get as many reports as it wants to discover expert opinion on the issue, and nothing is added to its case by taking ones from the defence. There is a need for considerable thought about the proposals.

Hilary Benn: We have had a useful discussion on the clause. It might be helpful if I begin by reminding hon. Members where the Government found themselves when we originally consulted on the proposals. It was proposed that the content of the unused expert witness reports should be disclosed. We sought views on that proposal, and the overwhelming consensus was that it was not a good idea. We listened and acknowledged that. We are now left with a genuinely modest measure, and I ask hon. Members to reflect on it in that light.
 The general principle running through the present set of clauses is that disclosure obligations should be equally balanced. As we have heard, the prosecution must disclose to the defence before the trial copies of reports by any expert whom they intend to call to give evidence. 
 As regards adverse inference, my hon. Friend the Member for Wellingborough was absolutely right that it is not an issue in the interplay between this clause and clause 34. In one sense, that offers protection. 
 What are the reasons behind the provisions? First, there is the issue of shopping around. I entirely accept that that is not an issue with publicly funded defendants, but it may be with those who privately fund their defence. That is why I say that this is a modest measure. 
 Secondly, the provisions may enable the prosecution to approach and consult expert witnesses with a view to obtaining evidence to support the 
 prosecution case. The hon. Member for Beaconsfield acknowledged that that raises issues of privilege and professional practice, and it will be for the expert concerned to decide whether to accept an instruction from the prosecution after having been consulted by the defence. Could the prosecution call the defence expert to give evidence for the Crown? It would be open to them to do so, but they would need to satisfy the court that the expert could give admissible evidence that was relevant to the issues in dispute. Of course, the legal professional privilege rule would prevent the expert from being questioned about any work done for the defence. I understand the concerns expressed, though I do not share them. The provisions are very modest. 
 Incidentally, the Home Affairs Committee made a fair point in saying that it accepted the need for the clause. It welcomed the response that the Government had made to consultation on the broader issue of disclosing the contents of the report. It asked to what extent the provisions would work in practice. They would be of assistance in two examples that I gave. The measure is modest.

Ian Lucas: One point that troubles me is whether legal professional privilege will apply to the report, the contents, and the evidence of the expert whom a defence team instructed.

Hilary Benn: Is my hon. Friend talking about the report prepared for the defence but not used?

Ian Lucas: I am talking about the report and its contents—not the document only, but the opinions derived from it.

Hilary Benn: The point that my hon. Friend raises goes to the heart of the issue. Suppose the defence have consulted an expert whom they decide not to use. If the name is then released to the prosecution and they decide to consult, the expert must decide whether he feels able to accept the commission in the light of the consideration that he initially gave to the defence's request. The answer to my hon. Friend's question is that matters would depend on the circumstances. However, I hope that I can assure hon. Members that the legal professional privilege rule would prevent the expert—I repeat the point for the avoidance of doubt—from being questioned about any work done for the defence. However, that might not stop the prosecution from separately commissioning the expert and asking questions about the issues that are the subject of debate. I accept the point that my hon. and learned Friend the Member for Redcar made about expert opinion, which might not assist the process of the trial.

Dominic Grieve: I listened to the Minister carefully. However, he did not persuade me at all. He described the measure as modest. I return to the two principal matters that he identified. He said that the provisions will prevent shopping around. The point was made—I think that he accepted it, as do I—that a legally aided defendant will not be in much of a position to shop around. However, why should people not shop around?
 I ask the Committee to consider recent cases that have been referred to the Court of Appeal under both 
 the new procedure and the old references of miscarriages of justice. A lot of them have depended on expert scientific evidence, which in some cases cleared those appellants, sometimes after many years in prison. That evidence was obtained through shopping around and finding a person who was prepared to listen to the defendant's case, to apply his professional expertise and to get the court to accept that expertise. I do not accept that shopping around to find an expert to support a case is inherently wrong. It might be a great waste of time or money for a non-legally aided defendant. It might be an attempt to clutch at straws to prevent oneself from being convicted. 
 However, one cannot escape the fact that prosecution experts have been shown, time and time again, to be wrong, incompetent and—sometimes—drunk. I remember the case of the late Dr. Frank Skuse and the gelignite on the fingers of the Birmingham bombers. He was subsequently discredited by scientific evidence that was not available at the trial. I presume that no one was available at the time to counter his evidence. I do not remember, as it was such a long time ago. Someone was eventually found who helped to persuade the Court of Appeal that the original decision was wrong. It is starting off on the wrong foot to say that shopping around for experts is somehow a nefarious activity. The hon. and learned Lady rightly picked up on comments that came out of the inquiry following the tragic murder of Damilola Taylor about anxieties concerning the use of experts. However, the clause is not required to deal with shopping around, and I do not want it to be. 
 The Minister comprehensively answered his own question about the possibility of the prosecution making use of the expert when he said that it would be extremely difficult to do so. It might be possible to take the prosecution's facts to the expert, but how that expert would blot from his mind the material that he received under legal professional privilege from the other side would raise extraordinarily difficult issues about admissibility of evidence.

Hilary Benn: I have listened carefully to the hon. Gentleman. I acknowledged that there would be difficulties, but is he saying that it would be impossible in all circumstances for the situation to occur? If he does not think that it would be impossible, does that not reinforce my point that a modest measure may apply in those cases and may be helpful?

Dominic Grieve: I accept that it might not be impossible, but it would be very unlikely. Whether it would be desirable is another issue. Advisers have an obligation not to mislead the court by misrepresenting the case. However, they have no current obligation to divulge matters that might be prejudicial to their client's case, and there is no proposal in the Bill to impose such an obligation on them. The proposal is a serious inroad into that principle. I find it impossible to justify, and would not want to do it. After all, the prosecution has access to enormous lists of experts. As the hon. and learned Lady said, it can shop around. If it finds that an expert does not support its case, it can go to someone else, although it does, of course, have to
 reveal that to the defence. It is inherently unlikely that the prosecution would want to use an expert once it had been told that he had been approached by the defence, unless it were in some way to attack, rubbish or criticise the defendant when he gave evidence—the most important point. That would be very undesirable.
 I cannot say more than that, but simply urge the Government to reconsider the matter. If the proposal is so modest, why pursue it at all when all parties are expressing such anxieties about the impact the proposal could have on the fairness of trial proceedings. I urge the Minister not to be swayed by what I am sure are well meaning and, in many respects, extremely well reasoned reports produced after tragedies or horrible murders. We cannot introduce sound legislation on that basis. 
 I intend to ask for the opportunity to press amendment No. 230 to the vote. If I cannot secure that amendment, I will not vote against the clause in the clause stand part debate, as it is my intention to return to the matter when other hon. Members of the House, not just Committee Members, may have an opportunity to express their views for or against it. I do not think that we should prejudice that by voting on it at this stage. 
 If possible, I should like to put amendment No. 230 to the vote. It would draw the sting from the primary use of disclosure, although I would still be unhappy even with an amended clause 30. However, it would at least be an improvement. I do not like the intention at the heart of clause 30; it is a terrible mistake.

Simon Hughes: We have had an important debate on an important issue and, like the hon. Member for Beaconsfield, I am persuaded by the case. One of the reasons that the defendant should not be prejudiced is that the choice of experts and the decision to call in an expert is inevitably not theirs; they are advised to do it. It prejudices an individual whose liberty is in question as a result of a professional decision by someone else—technically, with the defendant's consent, but often with not much more than that. That puts the defendant at a considerable disadvantage.
 I accept that, as the Minister pointed out, the Government have moved on the matter. They started with disclosure of the evidence and moved to disclosure of the fact that an expert had been consulted. However, it still allows the prosecution to pick up the work that was done on behalf of the defence and to use it, subject to the professional integrity of the so-called expert. It presumes that it is unhelpful to have a so-called expert whom you do not call. It presumes that if defendants ask for the opinion of more than one expert because they are not on legal aid or because they can manage to do so otherwise, they are doing so for wrong and improper purposes. 
 I can think of a very important case before the courts at the moment, the details of which I shall not mention. It centres on a case that was the subject of a criminal investigation before and which is now the subject of a debate centring on the appropriateness of 
 experts' reports and the conclusions that they drew. They often concern matters on which experts disagree; it often comes down to whether the expert has particular experience of a particular sort of case—a particular weapon in a particular climate, for example. 
 We must be very careful not to prejudice the defendant. I am not persuaded; I am also keen to preserve our right to return to this matter later. Therefore, to save the Committee's time and to have a right to protest against the clause, I seek leave of the Committee to withdraw my amendment. I shall support the amendment tabled by the hon. Member for Beaconsfield. Although I will not oppose the clause any further today, unless the amendment is carried, I give notice that we shall expect to return to the matter. We need to be persuaded, and we are nothing like persuaded. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Amendment proposed: No. 230, in 
clause 30, page 19, line 29, at end add— 
 '(4) In the event of the expert evidence of a person named in subsection (1) above not being relied upon by the accused and no copy of his report having been served by the accused on the prosecutor, no reference shall be made of trial by the prosecutor or evidence adduced by him, to the effect that the accused had approached such person for his expert opinion.'.—[Mr. Grieve.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 6, Noes 10.

Question accordingly negatived. 
 The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendment proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill. 
 Question agreed to. 
 Clause 30 ordered to stand part of the Bill.

Clause 31 - Further provisions about defence disclosure

Simon Hughes: I beg to move amendment No. 193, in
clause 31, page 20, line 10, after 'party', insert 'having heard representations from all parties'.

Eric Illsley: With this we may take amendment No. 231, in
clause 31, page 20, line 13, at end add 'and that it would be fair in all the circumstances so to do.'.

Simon Hughes: The amendment relates to defence disclosure where the defendant's representative agrees
 to a statement on behalf of the person represented, but without his express authority. It is a probing amendment, designed to place on record the importance of allowing legal argument about whether it is proper and appropriate to give the jury a defence statement to which the defendant has not agreed. In some circumstances, a defendant may not be physically present or it may be impossible to get agreement because the defendant is unwilling or the jury change their mind. Sometimes the defendant may not understand, and under the new system the defence are required to provide a statement, but the decision may be taken by the legal representative or with the agreement of the defendant, which might subsequently be withdrawn.
 The court adjudicates on whether the statement should be shown to the jury and protection is relevant because of the risk of adverse inferences being drawn from it, particularly if it is shown to be inconsistent with later developments. The danger is that the defendant might be unjustifiably prejudiced by an interpretation put on a document produced and served on his behalf. The amendment would ensure that that argument could be put before the court. 
 The hon. Member for Beaconsfield suggests a second rider in amendment No. 231. It was argued earlier that the application of such measures would apply more commonly in complex fraud cases or when many defendants were involved. For practical reasons, it often proves difficult to take instructions on all aspects of the prosecution case and secure agreement to everything in a statement. It is a lesser matter than the previous one, but again we must be careful not to prejudice the defendant.

Dominic Grieve: Amendment No. 193 is a probing amendment, similar to those debated earlier. It would be extraordinary if, during the course of determining whether the jury should have a copy of the defence statement, all the parties were not heard. I expect them all to be heard, and I hope that the Minister will assure us that they will.
 On the second issue, the matter goes a little further. I said that there might be circumstances in which it could be useful for a jury to see a defence statement. However, we must be careful that we do not end up having trial by defence statements in place of trial on the evidence that is presented to the court. Will the Minister outline the circumstances in which he would expect a statement to be placed before the jury, so that we can understand why the Government thought that this clause was necessary? Presumably, ideas or examples have been put to the Government of times when to show a jury a defence statement would be of practical benefit, instead of causing injustice.

Hilary Benn: Although we agree with the principle behind the amendments, we do not consider them necessary. In the process of offering reassurances, I hope that I shall be able to demonstrate that.
 To echo our earlier discussion, judges will invariably wish to consider representations from all parties before they direct that the jury should be given a copy of the defence statement. For the reasons that I gave earlier, to have to provide in statute a reference to 
 the need to consider representations throws into doubt all the other cases in which such decisions must be taken. As far as the amendment needs to be considered, it could be covered by the rules of court. I hope that in making an identical point to the one that I did earlier, I can reassure the hon. Member for Southwark, North and Bermondsey. 
 As far as the amendment moved by the hon. Member for Beaconsfield is concerned, the judge will always take into account the need to ensure a fair trial. The hon. Gentleman's amendment is worded: 
''that it would be fair in all the circumstances to do so.''
 I am sure that judges would take offence at any suggestion that they would not consider whether it would be fair in all the circumstances to decide to give the jury a copy of the defence statement. Therefore, I genuinely do not think that the amendment is necessary. As to the circumstances, the jury may wish to consider arguments that have been made on whether adverse inference should be drawn. 
 I confess that I was surprised when I discussed the matter in more detail with officials before the debate—there may be an argument for saying that, in general, it might help juries to see defence statements. I was puzzled by the argument that to have a trial based on the defence statement, rather than on hearing the arguments, was a problem. 
 I am not a lawyer and I may be treading in dangerous waters, but, given the way in which most of us now take decisions, and the ways in which Ministers operate on the basis of submissions and then discussions with officials—similar to a trial—I have no difficulty with the argument that, in some circumstances, the judge might decide that to have access to the defence statement, alongside listening to the arguments presented at the trial, would help the jury to consider the case. That might allow a practice of giving documentation to juries to develop in the court. 
 I see no conflict there; I do not see how giving the jury a prepared defence statement could get in the way of a fair trial or the consideration of arguments that are presented orally in court.

Dominic Grieve: There is a problem, which returns to something that was said earlier about privilege against self-incrimination. We have some clear rules in our law about drawing an adverse inference from silence. We must give clear warning to an individual about the consequences of saying something. That happens all the time in police stations—defendants are cautioned. I see no sign in part 5 of defendants being told anything along the lines of, ''you are required to provide a defence statement, but we must warn you that if you do so and evidence emerges at trial that is at variance with your defence statement, it might be placed in front of the jury so that they can note the discrepancies.'' There is no such provision. It would be unfortunate if it were to become a practice, although I accept that in some contexts, such as consideration of a defendant's previous witness statement, it would be proper.

Ian Lucas: Can the hon. Gentleman assist me? Are written alibi notices ever presented to juries? There might be circumstances in which an alibi that was given at an earlier stage was departed from. Are such notices admissible?

Dominic Grieve: I confess that I have no recollection of ever having been involved in a case in which the alibi notice has been read. I suspect that it cannot be. I can give another example of something that cannot be used, because in younger, ignorant days as a prosecutor, I tried to get it in. That was the contents of a defendant's legal aid application, which was completely at variance with the evidence that he gave in the witness box about his means. It was massively prejudicial, but the judge rightly pointed out to me that there was a rule that prohibited any examination of the defendant upon the contents of his legal aid application.
 Many categories of documents cannot be used by prosecutors for the purpose of discrediting defendants. Clearly, in this case, the Government's intention is that the defence statement is not simply a means of alerting the prosecution to the defendant's case but may also be used, in not very clear circumstances, as evidence that could be placed before the jury as part of the prosecution case against him. If the defendant wanted to adduce the evidence of his statement, there would be nothing to stop him from doing so. 
 Therefore, my question is: are we sure that we have resolved the issue, or are we going to leave it to the judiciary to protect defendants' interests? The constant widening of the scope of the material that may be dragged into a trial worries me. I shall not press the matter at this stage, but I might return to it on Report, if necessary. I urge the Minister to think about it a bit more, also, as I am not sure that it is helpful.

Simon Hughes: I share the same general concerns. We shall not resolve the matter now. I understand that it is sometimes better for a jury to see a summary of a case, as it is for Members of Parliament to have notes on clauses. The criminal trial is slightly more difficult, because the defence statement is a document purporting to be given on behalf of the defence, having been put together by someone else, so it is a step further removed. Although the Minister has reassured us that there is judicial protection, in that the judge will have to be satisfied that the jury can see the statement, adverse inference can be drawn. Because of the trial context, issues such as ensuring that there is adequate opportunity for the statement to be given and checked; what happens if it is not given or checked by the defendant personally; and the warning that it might, to use the cliché literally, be used in evidence against him cause me concern. There is a range of issues, and we shall have to put them in order.

Hilary Benn: I hope that it might reassure the hon. Gentleman to look at subsection (5)(b) of proposed new section 6E. The Committee will note that the judge may make such a direction only
''if the judge is of the opinion that seeing a copy of the defence statement would help the jury to understand the case or to resolve any issue in the case.''
 That is the safeguard.

Simon Hughes: I accept that.

Dominic Grieve: The hon. Member for Wrexham asked whether the contents of alibi notices could be used in evidence. The answer is yes, although it is noteworthy that that is hedged around with a number of complicated restrictions, which I do not have time to allude to during an intervention. It is not a straightforward matter.

Simon Hughes: That information is gratefully received. It obviously does not happen often, as no one in the room has ever seen an instance. I indicated earlier that there was a league table of matters of importance in the area of disclosure—we still need to address some of the issues that recur in drafting. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 31 ordered to stand part of the Bill.

Clause 32 - Continuing duty of prosecutor to disclose

Question proposed, That the clause stand part of the Bill.

Simon Hughes: I have a question for the Minister. The proposal is that a new section 7A be inserted in the 1996 Act. It concerns the perfectly reasonable continuing duty of the prosecution to serve notice on the defence and the obligation to do so as soon as is reasonably practical. The one question that was raised in the consultation process that has not been answered is: why does it not also include material that comes into the hands of the police, which might not have got as far as the hands of the Crown Prosecution Service? The Minister will understand the point. A lot of material is collected and continues to be collected. That might well carry on after the decision to prosecute has been taken by the CPS and can continue up to the door of the court and subsequently. In a long trial, that is what happens. The police are sent by the CPS to hunt for additional information. It seems that it was suggested that it was a weakness of the original proposal that it was not covered by the same safeguard, and that it should be. Can the Minister give the Committee some reassurance, or will he consider resolving the issue by tabling an amendment at a later stage?

Hilary Benn: I can answer the hon. Gentleman. The material collected by the police is covered by the obligation to disclose.
 Question put and agreed to. 
 Clause 32 ordered to stand part of the Bill.

Clause 33 - Application by defence for disclosure

Question proposed, That the clause stand part of the Bill.

Simon Hughes: I have one question for the Minister. My understanding is that the clause, which has to do with an application by the defence for further disclosure from the prosecution, has a precondition
 that the defence statement must be served first. It has been put to me that if the defence have concerns that the initial case has not been fully disclosed, they are obliged to serve their statement before the prosecution have revealed their hand. Is there a way of resolving the question whether the prosecution have to reveal their hand to the full? What sanction can be applied if the prosecution have not, either advertently or inadvertently, made full disclosure? I give one practical example. It is often the case that the defence are aware that someone has been interviewed yet they do not see a statement in the bundle. They might ask the police or the CPS, ''What about it?'' The answer might be, ''We know nothing about it''. As far as such bodies are concerned, the witness might be significant. In those cases, how can the defence's interests be properly looked after, and what sanction can they employ to ensure that they see everything before they have to serve their statement?

Hilary Benn: I do not know the answer to the hon. Gentleman's question, but I undertake to consider it, and to write to him if that is helpful.

Simon Hughes: I am grateful.
 Question put and agreed to. 
 Clause 33 ordered to stand part of the Bill.

Clause 34 - Faults in defence disclosure

Question proposed, That the clause stand part of the Bill.

Simon Hughes: I did not move amendment No. 194 because I thought that it might be defective. It referred to both comment and inferences. The amendment was inadequate, as it was designed to improve the proposed new clause 11(6) of the 1996 Act, which refers back to proposed new clause 11(5) of that Act, which breaks the matter down.
 My understanding is that under the provisions the leave of the court would no longer be required for comments to be made or for adverse inferences to be drawn in certain circumstances. Must the leave of the court be sought, so that the seeking of an adverse inference always requires judicial sanction? I hope that that is the intention, and assurance of that would be helpful.

Hilary Benn: The answer to the hon. Gentleman's question is that leave would be required in relation to witness notices. I hope that that is helpful.

Simon Hughes: I will reflect on the answer.

Hilary Benn: So will I.
 Question put and agreed to. 
 Clause 34 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Mr. Heppell.] 
 Adjourned accordingly at twelve minutes past Six o'clock till Tuesday 14 January at ten minutes past Nine o'clock.